Criminal Practice - ALL

Question 1

When is a suspect charged?

Answer 1

• When it is suspected that a criminal offence has been committed, the police will investigate* If there are reasonable grounds to suspect a person has been involved in the commission of an offence, the suspect will be arrested. * The police then conduct further investigation, which may include interviewing the suspect * Following this investigation, if the prosecution think there is a realistic prospect of conviction and it is in the public interest to prosecute, the suspect can then be charged (CPS will advise on what most suitable offence is).

Question 2

When does a suspect become a defendant?

Answer 2

After being charged.

Question 3

What is acquittal?

Answer 3

• If the defence is successful, the court cannot be sure beyond reasonable doubt that the defendant committed the offence and must therefore ‘acquit’ the defendant. * Acquittal does not mean that the court is satisfied that the defendant did not commit the offence charged; it simply means the court cannot be sure that the defendant did commit the offence charged.

Question 4

What are the 3 classifications of offences?

Answer 4

• Summary only* Either way* Indictable only

Question 5

What is a summary only offence?

Answer 5

• Can be heard only in the Magistrates’ Court (unless charged together with other offences that can go to the Crown Court)* Less serious offences carrying lighter sentences* Maximum: 6 months for single or multiple summary only offences, and 12 months for single or multiple either way offence* Examples: assault and battery

Question 6

What is an either way offence?

Answer 6

• Can be heard in either the Magistrates’ Court or in the Crown Court, depending on the seriousness of the offence in question and the defendant’s wishes * Examples: theft, criminal damage, and burglary

Question 7

What is an indictable only offence?

Answer 7

• Can be heard only by the Crown Court* The most serious offences, carrying the longest sentences * Example: robbery, rape, and murder

Question 8

What are the criminal courts of first instance?

Answer 8

• Magistrates’ Court* Crown Court* Youth Court

Question 9

Where do all criminal cases start?

Answer 9

Magistrates’ Court, irrespective of charge

Question 10

What is the overriding objective of criminal law?

Answer 10

Criminal cases be dealt with justly, which includes (amongst others): * acquitting the innocent and convicting the guilty;* dealing with the prosecution and the defence fairly;* recognising the rights of a defendant; * respecting the interests of witnesses, victims, and jurors; and * dealing with the case efficiently and expeditiously.| In Criminal Procedure Rules

Question 11

Who presides over the Magistrates’ Court?

Answer 11

A District Judge of magistrates. * A DJ is a legally qualified judge (often a former solicitor or barrister with at least seven years of experience in practice) who sits alone. * Magistrates are laypersons and sit in panels of two or three, they are generally not paid. A legal advisor is present to advise the panel on matters of law and procedure. * The DJ or panel are the arbiters of issues of both fact and law.

Question 12

Who presides over the Crown Court?

Answer 12

A Crown Court Judge. * The Crown Court Judge is the arbiter of all matters of law, * All matters of fact are decided by a jury.

Question 13

What is a jury?

Answer 13

A collection of 12 randomly selected people who will decide whether the defendant is guilty or not guilty.

Question 14

In which court are rates of acquittal higher?

Answer 14

Crown Courts (admissibility of evidence is heard in the absence of the jury)

Question 15

What types of offences are dealt with in the Crown Court?

Answer 15

• Indictable only offences;* Either way offences, when the Magistrates’ Court has declined jurisdiction or when the defendant has elected Crown Court trial; * Either way or summary offences which are related to another offence being heard by the Crown Court if it is punishable by imprisonment and/or disqualification from driving; and * Appeals against conviction and sentence from the Magistrates’ Court.

Question 16

Which offences are summary only?

Answer 16

Assault * Max: 6 months custody* Range: Discharge - 26 weeksBattery* Max: 6 months custody* Range: Discharge - 26 weeksCriminal Damage with Value under £5,000* Max: 3 months custody* Range: Discharge - 3 months custodyShoplifting with value below £200* Defendant can still elect Crown Court trial

Question 17

Which offences are indictable only?

Answer 17

s18 GBH* Max: Life* Range: 3 - 16 years custodyMurder* Max: Life* Mandatory life sentenceManslaughter by Diminished Responsibility* Max: Life* Range: 3 - 40 years custodyManslaughter by Loss of Control* Max: Life* Range: 3 - 20 years custodyUnlawful Act Manslaughter* Max: Life* Range: 1 - 24 years custodyGross Negligence Manslaughter* Max: Life* Range: 1 - 18 years custodyRobbery* Max: Life* Range: 1 - 16 years custodyAggravated Criminal Damage* Max: Life* Range: High level community order - 12 years custodyDomestic Burglary with intent/commission of indictable only offence or victim is subject to violence/threat or 3rd charge of domestic burglary* Max: 14 years custody* Range: Community order - 6 years custody

Question 18

Which offences are triable either way?

Answer 18

ABH* Max: 5 years custody* Range: Fine - 3 years custodys20 GBH* Max: 5 years custody* Range: Community order - 4 years custodyTheft with value over £200* Max: 7 years custody* Range: Discharge - 6 years custodyDomestic Burglary with no indictable only offence or attempt/no violence or threat to victim/less than 3 charges of domestic burglary* Max: 14 years custody* Range: Community order - 6 years custodyNon-domestic Burglary* Max: 10 years custody* Range: Fine - 5 years custodyFraud (false representation/failure to disclose/abuse of position)* Max: 10 years custody* Range: Discharge - 8 years custodyCriminal damage with value over £5000* Max: 10 years custody* Range: Discharge - 4 years custodyArson* Max: Life* Range: Discharge - 8 years custody

Question 19

What are the 7 rights of a detained suspect?

Answer 19

These rights are set out in the Police and Criminal Evidence Act 1984 (‘PACE’). * Access to free legal advice, free medical help, and a free interpreter* The right to notify someone of their arrest* The right to inspect police Codes of Practice (the regulations governing police powers under PACE)* The right to silence* The right to be informed of the reason for the arrest* The right to inspect documents relating to the arrest and detention and * The right to information on detention time limits.

Question 20

What are the rankings of the police force in ascending order?

Answer 20

• Constable* Sergeant* Inspector* Chief Inspector* Superintendent* Chief Superintendent* Assistant Chief Constable * Deputy Chief Constable * Chief Constable.

Question 21

What is covered by the right to legal advice?

Answer 21

• A person under arrest has the right to receive free, private legal advice at any time during detention. * This legal advice is independent of the police and prosecution and can include consulting with a legal representative on the phone or in person. * When a suspect requests legal advice, the Defence Solicitors Call Centre (‘DSCC’) is contacted (unless the suspect requests the advice to be paid for). * The DSCC then determines whether telephone advice is sufficient or whether a solicitor should attend the police station.* Note, the right can be delayed in limited circumstances.

Question 22

When may the right to legal advice be delayed?

Answer 22

• The suspect is arrested on an indictable only or either way offence* A police officer of the rank of superintendent or above has authorised the delay in writing; and * The officer has reasonable grounds to believe that exercise of the right will lead to interference with evidence, interference with others, alerting other suspects, or hindering the recovery of property related to the offence. The right can be delayed 36 hours at most. In practice, it is extremely rare for this right to be delayed, as legal advice is a fundamental right and a failure to access such advice is likely to cause problems for the admissibility of evidence collected prior to advice.

Question 23

When will the right to legal advice be limited to a phone call by the DSCC?

Answer 23

All suspects will receive in-person support unless:* they are detained for a non-imprisonable offence or * if they’ve been arrested for failing to attend at court, or * if they’ve been arrested for driving over the limit, * failing to provide specimen whilst driving unfit, or * breach of court bail. Even for these offences, a suspect will receive in-person support if they are complaining of maltreatment, or an interview is to take place, or identification procedures are going to take place.

Question 24

Who is entitled to free legal advice?

Answer 24

Everyone detained by the police, regardless of financial status

Question 25

When is delay to the right to have someone informed of arrest permitted?

Answer 25

A suspect has a right to have a friend, relative, or other person informed of their arrest. Delay is permitted only when: * The suspect is arrested on an indictable only or either way offence; * A police officer of the rank of inspector or above has authorised the delay in writing; and * The officer has reasonable grounds to believe that exercise of the right will lead to interference with evidence, interference with others, alerting other suspects, or hindering the recovery of property related to the offence. The right can be delayed a maximum of 36 hours and should be delayed only as long as necessary. Any delay must be proportionate.

Question 26

D has been arrested on suspicion of burglary. The investigating inspector has reasonable grounds to believe that, if permitted to inform someone of the arrest, D will notify other possible suspects of the investigation and thereby trigger the removal or destruction of the stolen goods from D’s property. How long can the inspector delay D’s right to inform someone of his arrest?

Answer 26

The inspector can delay D’s right to have someone informed of the arrest up to 36 hours to enable a search warrant to be obtained and a search carried out of D’s home. As soon as the search has been completed, D’s right to have someone informed should then be granted.

Question 27

What is the maximum time a suspect can be kept in custody without charge where no extension have been granted?

Answer 27

24 hours from the relevant time (i.e. when the suspect entered the police station not when booked in/arrested.

Question 28

What is the relevant time in calculating custody time limits?

Answer 28

From the time the suspect enters the police station (i.e. not when they are booked/arrested)

Question 29

What are the 4 requirements for the 24 hour policy custody time limit to be increased by an additional 12 hours to 36 hours total?

Answer 29

• The suspect is arrested on suspicion of an indictable only or either way offence;* An officer of the rank of superintendent or higher authorises the continued detention; * The officer has reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning and * The investigation is being conducted diligently and expeditiously.

Question 30

What is required for a suspect to be held at the police station beyond 36 hours?

Answer 30

A warrant for further detention must be sought from the Magistrates Court. The court can grant a further 36 hours on first application and an additional 24 hours on second application. The Magistrates’ Court will authorise further detention if: * The suspect is arrested on suspicion of an indictable only or either way offence* The Court has reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning and * The investigation is being conducted diligently and expeditiously.

Question 31

What is the maximum amount of time a suspect can be held without charge in a police station?

Answer 31

96 hours

Question 32

How many additional hours of police custody can be granted on first application to the Magistrates’ Court?

Answer 32

36 hours

Question 33

How many additional hours of police custody can be granted on second application to the Magistrates’ Court?

Answer 33

24 hours

Question 34

S is arrested at 4pm on Saturday on suspicion of robbery. They arrive at the station at 5pm. They are checked into custody at 6pm. What is the longest amount of time they can be held in custody?

Answer 34

96 hours

Question 35

S is arrested at 4pm on Saturday on suspicion of assault. They arrive at the station at 5pm. They are checked into custody at 6pm. What is the longest amount of time they can be held in custody?

Answer 35

24 hours - it is not an indictable only/either way offence

Question 36

When must an identification procedure be held?

Answer 36

• A witness has identified or purported to identify a suspect* A witness expresses an ability to identify a suspect or * There is a reasonable chance of an eyewitness being able to identify a suspect.

Question 37

If a witness can identify a suspect because they know them, in what circumstances will an identification procedure be carried out?

Answer 37

When they have not seen them in a long time. Otherwise there is no need.

Question 38

What are the 2 purposes of identification procedures?

Answer 38

• Test the witness’s ability to identify the suspect as the person they saw on the previous occasion and * Provide safeguards against mistaken identification.

Question 39

If a suspect is not yet identified, what might the police do with a witness?

Answer 39

The police may take the witness to the scene of the offence to see if the suspect can be identified locally. If this procedure is followed and a suspect is identified and arrested at the scene, a formal identification procedure must then be carried out.

Question 40

W witnesses a robbery at the cashpoint. The perpetrator is not known, but W thinks they will be able to identify the perpetrator. A police officer takes W to the scene, and W sees D there and identifies them as the perpetrator. D is arrested and denies any involvement in the offence. What must be done next?

Answer 40

An identification procedure should be carried out to see if W can identify D as the perpetrator in a controlled environment.

Question 41

W witnesses a robbery at the cashpoint and tells the police that D was the robber. D is arrested on suspicion of the robbery. D is known to W, as they both work for the same company nearby and see each other daily in the office. D denies being the perpetrator and says W is mistaken. Is an identification procedure necessary?

Answer 41

There is no point in carrying out an identification procedure because W will be able to recognise D from their work in the office.

Question 42

W witnesses a robbery at the cashpoint. D is arrested on suspicion of the robbery. D is known to W, as they used to attend the same youth club. W and D no longer see each other regularly, and it has been over five years since W last saw D. D denies being the perpetrator and says W is mistaken. Is an identification procedure necessary?

Answer 42

Yes, an identification procedure should be carried out to see if W can identify D as the perpetrator as they have not seen eachother in a long time.

Question 43

What are the 4 rights of suspects involved in identification procedures?

Answer 43

• To have the purpose of the procedure explained* To have free legal advice and to have a solicitor or friend present* To have their obligations explained and the consequences of their decisions (i.e. they need not cooperate, but a procedure may still be conducted covertly and the failure to cooperate may be raised at trial) and* If the suspect changes their appearance (e.g. shaves their beard off, cuts their hair short, or changes hair style) between the notification and conduct of the procedure, it may affect the conduct of the procedure and may be raised at trial

Question 44

What are the 4 types of identification procedure?

Answer 44

• Video identification (most common)* Identification parade* Group identification* Confrontation| Set out in Code D of Pact 1984

Question 45

What happens in a video identification procedure?

Answer 45

• Moving images of the suspect and eight or more others are shown to the witness. * The others must resemble the suspect.* The suspect and their solicitor must have a chance to raise reasonable objections which should be heeded.* The witness must be shown images at least twice and be warned that the suspect may not be featured in the videos. * If there are multiple witnesses, they must be separated

Question 46

What happens in an identification parade?

Answer 46

• The suspect and eight or more others who resemble the suspect appear in a line. * The suspect may object to arrangements and participants and may choose their position in the line. * The witness must be warned that the suspect may not be featured in the parade. * If there are multiple witnesses, they must be separated * The parade should be recorded or colour photographed.

Question 47

What happens in a group identification procedure?

Answer 47

• The witness sees the suspect in an informal group. * This procedure may take place with or without the suspect’s consent (i.e. may be in secret) * The location should take into account the appearance of others present e.g. you wouldn’t ID a 17 year old at the foyer of the Royal Opera House as it would make the suspect stick out conspicuously. * A color photograph or video should be taken immediately after identification.

Question 48

What happens in a confrontation identification procedure?

Answer 48

• The witness must be warned that the suspect may not be present. * The suspect’s solicitor or friend may be present unless it would cause undue delay. * The suspect should not be restrained at the time of the identification. * The witness is asked, “Is this the person you saw on the earlier occasion?” This procedure is very rare and usually takes place at the police station.

Question 49

What does ‘resemble’ mean in the context of identification procedures?

Answer 49

The others in the procedure must resemble the suspect in:* age, * height, * appearance, and * position in life, and * any distinguishing features must be concealed e.g. tattoos, scars etc.

Question 50

What are 4 possible objections to admission of video identification evidence?

Answer 50

• Failure to take into account reasonable objections to the appearance of others in the identification procedure* Failure to keep the witness away from the suspect before or during the identification process* Failure to keep witnesses apart before or during the identification process* Failure to warn witnesses that the suspect might not be shown at all.

Question 51

Will objections to identification evidence always lead to the excusion of the evidence?

Answer 51

• If there is a breach of Code D, it may lead to the identification evidence being excluded. * The court will consider whether its admission would have such an adverse effect on the fairness of trial that it ought to be excluded

Question 52

What is common practice for the recording of police interviews?

Answer 52

• The interview takes place in an interview room and is recorded * The recording has to comprise an audio recording but may also include a video recording. * It is common practice for interviews to be recorded onto two audio tapes: a master copy and a working copy.

Question 53

When should a suspect not be interviewed?

Answer 53

If a suspect seems unable to:* appreciate the significance of the questions or answers, or * understand what is happening owing to intoxication or any other condition.

Question 54

D is arrested on suspicion of affray. D was allegedly involved in a drunken fight outside a nightclub. D is taken into custody and is clearly still inebriated. Can D be interviewed?

Answer 54

D cannot be interviewed until they can appreciate the significance of the questions and their answers. In practice, they will be left to sleep it off in a police cell until they are fit for interview.

Question 55

What are the 2 key rights of a suspect in relation to the police interview?

Answer 55

• Legal representation * Silence

Question 56

What are the 3 key duties of a legal representative before a police interview takes place?

Answer 56

Inspect the custody record. * A custody record is a log of a suspect’s time in detention at the police station maintained by the custody officerObtain disclosure prior to interview from the investigating officer. * There is no duty upon the police to provide a legal representative with any evidence, but they must provide sufficient information for the representative to understand the nature of the offence and the reasons why the detainee is under suspicion. * The legal representative will seek to gain as much information as possible from the police in order to inform their advice to their client. Advise their client whether to answer questions during the interview.

Question 57

What is a police caution?

Answer 57

A warning given to the suspect at the start of the interview, setting out the suspect’s rights in the interview.Right to silence and no obligation to answer* “You do not have to say anything”Adverse inference may be drawn* “But it may harm your defence if you do not mention, when questioned, something you later wish to rely on in court”Purpose of interview is to gather evidence* “Anything you do say may be given in evidence”

Question 58

D is detained in custody on suspicion of theft. D is interviewed about the offence and a caution is given at the start of the interview. D does not answer questions. At trial, D puts forward a defence that they were not at the site of the theft at the time but that they were at their friend’s house. They call their friend as witness. Why is it significant that they did not mention this in the interview?

Answer 58

The judge or jury may draw an adverse inference from D’s failure to put forward this account during police interview.

Question 59

D is detained in custody on suspicion of theft. D has been offered and declined legal advice. D is interviewed about the offence and makes a full confession during the interview. The interviewing officer omitted to give the appropriate caution at the beginning of the interview. Is the confession likely to be admissible?

Answer 59

No. The failure to advise D about their right to silence at the start of the interview is likely to result in the exclusion of the interview from evidence at trial. The defence should object.

Question 60

How is it usually determined whether a caution was given before an interview?

Answer 60

The recording. If the interview wasn’t properly recorded, it would very likely be excluded.

Question 61

What is a special caution?

Answer 61

A special caution must be given If the defendant’s presence at the scene of the offence or an object (e.g. hammer), substance (e.g. white powder), or mark (e.g. blood) found on the defendant at the time of arrest is a relevant factorThe caution must:* outline what offence is being investigated and * what fact the suspect is being asked to comment on,* before warning that an adverse inference may be drawn if they fail to provide an account now that they later rely upon in court.

Question 62

D is arrested at the scene of an affray with a screwdriver in their possession. D is interviewed about the offence. Does type of caution must D be given?

Answer 62

A special caution, warning D that: (1) D is suspected of affray; (2) the interviewing officer wants D to explain why they have a screwdriver in their possession; (3) the interviewing officer believes D may have had the screwdriver in their possession due to their involvement in the affray; (4) the court may draw an inference if D does not account for having a screwdriver in their possession; and (5) a record of the interview may be given in evidence if it goes to trial.

Question 63

What 3 options are available to a suspect in interview?

Answer 63

• Answer questions and give a full account in the interview* Decline to answer questions (saving “no comment” or remaining silent throughout) or * Hand in a written statement setting out their account and decline to answer any further questions Example: D is arrested on suspicion of burglary, involving the theft of tools from a workshop. D was not involved in the burglary and has an alibi. However, D knows who committed the burglary and took receipt of the stolen items before helping to sell them to third parties. D may opt to provide a written statement detailing their alibi but decline to answer further questions to avoid implicating themselves in further offences.

Question 64

When might a suspect decide to hand in a written statement in interview and decline to answer further questions?

Answer 64

If a suspect does not want an adverse inference to be drawn, can provide an account exonerating them and also has information incriminating themselves or someone else.

Question 65

Who is a vulnerable suspect?

Answer 65

• Youths (persons under the age of 18) and * Suspects with mental disorders or other vulnerabilities.An important safeguard is that vulnerable suspects are entitled to access to an appropriate adult.

Question 66

Who has the responsibility of identifying a vulnerable suspect?

Answer 66

The custody officer at the beginning of a suspect’s detention.

Question 67

Who is an ‘appropriate adult’ for a vulnerable suspect?

Answer 67

An appropriate adult can be:* the suspect’s parent or guardian, * a representative from a care organisation when appropriate, * a social worker, or * a volunteer who is not affiliated with the police.They can provide support and explanation to the suspect during their time in custody. * The appropriate adult should be present during the interview of a vulnerable suspect. * When appointing an appropriate adult, the wishes of the suspect should be taken into account* If a suspect is vulnerable and an appropriate adult was not called in (by accident or otherwise), the admissibility of any evidence obtained during interview may be excluded

Question 68

D is 14 and is arrested on suspicion of theft. D informs investigating officers that they do not want their mother to act as appropriate adult but would prefer their social worker to be contacted. Investigating officers call in the mother and proceed to interview D. The mother suffers from disabilities that make her unable to appreciate the nature of the police interview and her role as appropriate adult. Is the interview admissible?

Answer 68

The information obtained during the interview may be deemed inadmissible as a result.

Question 69

What are the 3 requirements before the police can interview a suspect?

Answer 69

• Suspect is deemed to be fit for interview* They have received appropriate legal advice * They have the support of an appropriate adult if applicable

Question 70

What constitutes ‘oppression’ in an interview?

Answer 70

Oppression includes* torture, * inhuman or degrading treatment, and * the use or threat of violence. Interviewing officers must ensure there is no oppression in the interview and should avoid too many officers being present during the interview.Solicitors should be on the look out for shouting, very aggressive behaviour etc.

Question 71

What constitutes ‘inducement’ in an interview?

Answer 71

Anything encouraging the defendant to confess e.g. a promise of a police caution, warning or bail, offer of early release, McDonalds, cigarette, promise of access to legal advice (contrary to the suspect’s right to legal advice) or notification of third parties.The interview must be conducted in a room which is heated, ventilated, and lit

Question 72

What is the role of a solicitor at the interview under PACE?

Answer 72

Only role is to protect and advance the legal rights of their client in the face of the police investigation. This includes:* protecting the suspect’s rights under PACE * obtaining disclosure from the police* advising the suspect on answering questions in the interview. This may require the solicitor to give advice which has the effect of the client avoiding giving evidence which could strengthen a prosecution case. * In interview, a solicitor may intervene in order to seek clarification, challenge an improper question or manner of questioning, advise their client not to reply to particular questions, or ask for the interview to be halted to give the suspect further legal advice.

Question 73

D is arrested on suspicion of a number of burglaries. D is interviewed in the presence of their legal advisor by two police officers. During the course of the interview, the police officers repeatedly ask the same questions of D, shout at D, swear at D, and move around the interview room in a physically intimidating way. What should the legal advisor do?

Answer 73

The legal advisor should, in these circumstances, intervene and remind the officers of their duties under PACE. The admissibility of the interview will be open to challenge when police officers have not complied with their duties under PACE.

Question 74

What amounts to professional misconduct of a solicitor at the police station?

Answer 74

Obstructing the conduct of the interview:* telling the suspect what to say during interview or* answering on the suspect’s behalf. If a solicitor obstructs the interview, they may be removed from the room (note, they should be warned first). This must be authorised by a superintendent and is extremely rare. In such circumstances, the defendant would be entitled to speak with another solicitor.

Question 75

Who must authorise the removal of a solicitor from a police interview in the event of misconduct?

Answer 75

A superintendant

Question 76

D is arrested on suspicion of murder. The investigating officers ask the suspect in interview where they were at the time of the offence. The suspect’s solicitor prompts the suspect to reply that they were with their mother at home. Is this behaviour permitted?

Answer 76

No, by prompting the suspect on their answers (or worse still, answering for them), the solicitor is obstructing the conduct of the interview and may be removed.

Question 77

D is arrested on suspicion of murder. The suspect is answering “no comment” to all questions. Investigating officers ask the suspect repeatedly in interview where they were at the time of the offence in an increasingly menacing way. The solicitor correctly advises the suspect that they are entitled to maintain their silence. The interviewing officer accuses the solicitor of being obstructive and obtains approval from a superintendent for the solicitor’s removal from the interview room. Was the officer correct?

Answer 77

No, the solicitor did not commit misconduct and the admissibility of any evidence obtained after the wrongful removal of the solicitor will be very vulnerable to challenge under s76 or 578 PACE.

Question 78

At the police station, who decides whether a charged suspect should be remanded in custody and produced at court at the next opportunity or released on bail?

Answer 78

The custody officer, after the interview is concluded and evidence is gathered. * They will hear submissions by the defence representative before making a decision. * The custody officer must take into account the same factors used in deciding the grant of court bail.

Question 79

What is the procedure for applying for bail if a defendant has been denied police bail?

Answer 79

The defendant will be produced at the Magistrates’ Court at the next available hearing. There is no prescribed procedure for a bail hearing.* If there are objections to granting bail, the prosecution will generally outline the objections to bail first (e.g. why conditions are inadequate), and the defence will then present its arguments for bail and propose conditions to address any objections. * The rules of evidence are necessarily more relaxed in bail hearings as compared to an actual trial, as evidence has generally not yet been collected or served* In rare cases, a witness might be called (e.g. defence might call a witness to confirm the details of a bail address).* If bail is refused or if conditions are imposed, the court must give its reasons for doing so in open court. If the court refuses bail, the court will issue to the defendant a certificate of full argument, which is a document that states the court heard full argument on the application for bail before it refused the application.

Question 80

Is there a right to bail?

Answer 80

Defendants have a general right to bail (except in the case of murder). The court can remand a defendant into custody only if it finds: * an exception to the right to bail applies and * there is a real prospect of a custodial sentence being imposed if convicted. If a charge is not punishable by a prison sentence, the defendant is automatically remanded on bail.

Question 81

What are the 7 exceptions to the right to bail?

Answer 81

• There are substantial grounds for believing that the defendant would fail to surrender, commit further offences whilst on bail, or interfere with witnesses or otherwise obstruct justice. * They are charged with an offence that can be tried in the Crown Court (the more serious crimes, such as burglary, arson, grievous bodily harm (‘GBH’)), and they were on bail at the time of the offence* Custody is for their own protection* There are substantial grounds for believing that the defendant would commit an offence on bail that would cause (or cause fear of) physical or mental injury to an associated person, which includes spouses, (former) partners, children, and relatives of the defendant* They are already serving a custodial sentence* There is insufficient information to make a decision on bail* They have failed to surrender or breached bail conditions in the same proceedings.

Question 82

How does the court decide whether there are ‘substantial grounds’ in the context of bail exceptions?

Answer 82

Court will consider anything it considers to be relevant including: * The nature and seriousness of the offence and the probable method of dealing with it (custody, community order, fine)* The defendant’s character, previous convictions, associations, and community ties (previous convictions make bail less likely to be granted. Strong community ties, links to reputable organisations, and having a good character record all make bail more likely to be granted)* The defendant’s record on complying with bail obligations* The strength of the evidence (the stronger the evidence, the less likely bail will be granted) and * The risk that the defendant might engage in conduct that would, or would be likely to, cause physical or mental injury to another.

Question 83

A defendant is charged with armed robbery. How does this relate to grounds for refusing bail?

Answer 83

The nature and seriousness of the offence may mean there are substantial grounds for believing the defendant may fail to surrender, as the likelihood of a lengthy custodial sentence upon conviction is high.

Question 84

A defendant has previous convictions for failing to surrender to court. How does this relate to grounds for refusing bail?

Answer 84

The defendant’s character, previous convictions, associations, and (lack of) community ties may mean there are substantial grounds for believing they would fail to surrender.

Question 85

What is required for conditions to be attached to bail?

Answer 85

Conditions must be * relevant,* proportionate, and* enforceable.As long as conditions meet this criteria, any condition can be imposed by the court. They are imposed to minimise any risk of further offending, absconding or interfering with witnesses.

Question 86

What are 7 commonly imposed bail conditions?

Answer 86

• Requiring the defendant to reside at a specified address (e.g. with a relative or at a bail hostel)* Requiring the defendant to report to a local police station at specified intervals * Prohibiting the defendant from going to a particular area* Prohibiting the defendant from contacting certain, named individuals (such as victims or witnesses) e.g. domestic violence cases* Requiring the defendant to comply with a curfew* Requiring the defendant to wear an electronic tag and * Requiring the defendant to obtain a surety who can post security that will be forfeited if the defendant fails to surrender.

Question 87

When will a court be likely to impose residing at a specific address as a bail condition?

Answer 87

When there is a concern about interference with witnesses, further offences, and absconding. Example: * D hit their neighbour in a boundry dispute. The neighbour is a key witness and there is risk of further offences if the two meet* A gang member involved in violent crimes with other members of a gang and they are jointly charged is at risk of reoffending if they are near the gang.

Question 88

When will a court be likely to impose reporting to the police station as a bail condition?

Answer 88

If there is a risk of absconding and to keep the need to attend court, and the issues that will arise if the defendant fails to attend fresh in the defendant’s mind. * The police will be immediately aware if the defendant absconds. * Weekly, twice weekly, daily, or even twice daily reporting can be imposed.

Question 89

What is the difference between security and surety as bail conditions?

Answer 89

• Security is money paid into court before (i.e. cash or cleared funds) the defendant is allowed out on bail. * Surety is money promised to the court by third parties with documentary evidence (e.g. bank statement or mortgage statement with house valuating), like family members. It’s only paid if the defendant does not answer his bail or turn up to court. A good bail application for a serious offence would include a combination of both security and surety. The amount offered should be a good proportion of the assets of the person providing the surety or security i.e. enough that it would financially hurt the provider if the defendant fails to surrender to bail to provide a clear incentive to surrender.

Question 90

Does the defendant have a right to bail if charged with murder?

Answer 90

The presumption is against release.* A defendant charged with murder may not be granted bail unless there is no significant risk that the defendant would commit an offence likely to cause physical or mental injury to another person. * Only by a Crown Court Judge can hear applications for bail in murder charges.

Question 91

How many applications for bail can a defendant make?

Answer 91

• A court must consider bail at each hearing* A defendant may make only one further bail application based on the same facts and submissions (so two applications in total). * A defendant may make additional requests for bail only if there is a change of circumstance (e.g. new evidence that weakens the prosecution case or a new bail address).

Question 92

D is charged with GBH in London. It is alleged the offence was committed as a part of gang-related violence. D has been refused bail twice on fears that D will not surrender for trial and/or will commit crimes whilst out on bail. Moreover, the address at which D proposed to stay while out on bail was deemed unsuitable as it was D’s own residence and in the vicinity of other alleged gang members. D has managed to secure a new place to stay in Bournemouth (some 200 miles away from London) with a relative who has an outstanding community record. Can D make a new bail application?

Answer 92

Yes, D may now make an additional application for bail, as there is a change of circumstance.

Question 93

What are the consequences of breaching conditions while on bail?

Answer 93

If a defendant breaches their bail conditions:* they can be arrested without a warrant* their bail also can be withdrawn, or * the court can impose more stringent conditions.

Question 94

What are the consequences of absconding while on bail?

Answer 94

If a defendant fails to surrender to bail, they commit a separate offence and risk their bail being revoked.

Question 95

What is the process of a first hearing of a summary only offence?

Answer 95

If over 18, first court appearance in the Magistrates’ Court.* Defendant will be asked to provide their name and date of birth. * The defendant pleads guilty or not guilty. * If the defendant pleads guilty, the court will proceed immediately to sentence unless pre-sentence reports are required * If the defendant pleads not guilty, a date for trial will be set around six to eight weeks hence, and orders regarding disclosure will be made.

Question 96

What is the process of a first hearing of an either way offence?

Answer 96

If over 18, first court appearance in the Magistrates’ Court.* Defendant will be asked to provide their name and date of birth. * Court proceeds to the plea before venue process.

Question 97

What is the process of a first hearing of an indictable only offence?

Answer 97

If over 18, first court appearance in the Magistrates’ Court.* Defendant will be asked to provide their name and date of birth. * Matter is sent immediately to the Crown Court for trial.

Question 98

What are the 5 duties of the defence solicitor at the first hearing?

Answer 98

• Obtaining disclosure from the prosecution* Taking instructions from defendant* Advising the client * Applying for a representation order* Making an application for bail

Question 99

What disclosure is likely to be obtained by a solicitor where the defendant is charged with an indictable only offence?

Answer 99

Very little information is disclosed at first appearance, as the matter must be sent directly to the Crown Court.

Question 100

What disclosure is likely to be obtained by a solicitor where the defendant is charged with a summary only/either way offence?

Answer 100

The amount of disclosure available is determined by whether the defendant was in custody prior to first appearance at court (and therefore produced more quickly than if he had been remanded on police bail). If produced from custody, the prosecution provides:* a summary of the offence and * a list of the defendant’s previous convictions If defendant appears on bail, the prosecution may also provide:* an outline of the interview, * witness statements,* exhibits * victim’s impact statement * other available evidence e.g. CCTV

Question 101

When can disclosure be sought in advance of the first appearance?

Answer 101

If a representation order is already in place.

Question 102

When taking instructions from a client, what must a solicitor seek?

Answer 102

• The defence solicitor must seek to get a clear account from the defendant on their account and their views on the prosecution evidence including witness statements.* Note, there may not be time to take a full statement from the defendant at court but this information is crucial.

Question 103

Which 2 professional conduct duties are relevant to taking instructions from the client?

Answer 103

• The duty to advance their client’s best interests and* The duty not to mislead the court. If these two duties conflict with each other, a solicitor must give the client careful advice on their chosen course of action. If the conflict cannot be resolved, the solicitor will have to withdraw from the case.

Question 104

D admits to their solicitor that they have committed the offence but still intend to plead not guilty. What must the solicitor do?

Answer 104

• The solicitor must give the defendant careful advice on the strength of the evidence and on credit for an early guilty plea (a reduction in sentence for pleading guilty and avoiding an unnecessary trial). * If D still intends to plead not guilty, the solicitor must warn D that the solicitor will not be able to mislead the court. * This means that the solicitor can still act for D and test the prosecution’s case, but the solicitor cannot advance an alternative account, as to do so would amount to professional misconduct.* If D does not accept this position, the solicitor will be obliged to withdraw from the case.

Question 105

What 4 pieces of advice must the solicitor give the client at the first hearing?

Answer 105

• The strength of the evidence against the defendant and the likelihood of conviction* The likely sentence if convicted, including credit for an early guilty plea * The steps needed to prepare the defendant’s case (such as obtaining further evidence) and * Court procedure, particularly on advantages and disadvantages of Magistrates’ Court or Crown Court trial for defendants intending to plead not guilty to either way offences

Question 106

Who makes the decision on plea?

Answer 106

The defendant only and a solicitor must never tell their client how to plead.

Question 107

What are representation orders?

Answer 107

An application for funding which is submitted to the court dealing with the case. The defendant must satisfy two requirements for an order to be awarded: * The interests of justice test and* The means test. This application must be made unless the defendant is privately funded or the case is pro-bono

Question 108

What 5 factors are considered in the interests of justice test?

Answer 108

• Whether the defendant is likely to lose their liberty or livelihood or suffer serious reputational damage * Whether the case requires the determination of a substantial question of law (e.g. challenging identification/hearsay/bad character evidence or inferences from silence)* If the defendant is unable to understand the proceedings or state their own case (i.e. vulnerability due to age, poor grasp of English etc.)* If the case may involve tracing witnesses, interviewing them, or expertly cross-examining them * If it is in the interest of another person (e.g. when the case may involve cross-examination of a complainant in a sexual or violent offence)

Question 109

What is relevant to whether the defendant is likely to lose their liberty or livelihood or suffer serious reputational damage?

Answer 109

• The seriousness and nature of the offence * Previous good character and standing of the defendant. * If the defendant is subject to a suspended sentence or community order this could also be considered as it makes a custodial sentence more likely.

Question 110

How is the means test satisfied?

Answer 110

Automatically if the defendant:* is under age 18, or * is in receipt of income support, income-based Job Seeker’s Allowance, a state pension, or income-related support allowances or benefits, All other defendants need to prove (by producing relevant documentation) that their means are sufficiently low to qualify for legal aid. * Currently, the threshold is £3,398 of annual disposable income (after all deductions and adjustments have been made). * If their disposable annual income is over £3,398 but less than £37,500, they will be entitled to some limited legal aid.

Question 111

What is the plea before venue procedure?

Answer 111

• Charge is read out.* The clerk explains that the defendant may indicate if they would plead guilty if the matter were to proceed to trial and that, if the defendant indicates they would plead guilty, the court would treat that as a guilty plea and proceed to sentencing* The clerk asks the defendant whether they would plead guilty or not guilty.* If defendant indicates guilty plea, the court proceeds to sentence (this can include sending to Crown Court for sentencing)* If defendant indicates not guilty plea or does not give an indication, the court proceeds to allocation.

Question 112

For what type of offence is the plea before venue process used?

Answer 112

Either way offences

Question 113

What is the purpose of the plea before venue process?

Answer 113

It tries to deal with the difficulty that:* the defendant should not be asked to plead until they know what court is hearing the case but * part of deciding where the case should be heard is having some idea of how the case is likely to progress, i.e. what the plea is likely to be.The plea before venue process is designed to bridge that gap.

Question 114

What advice must a solicitor give their client in relation to the plea before venue process?

Answer 114

The advantages and disadvantages of electing trial in the Magistrates or Crown Court.

Question 115

What are the advantages of the Magistrates’ Court over the Crown Court for the defendant?

Answer 115

• Court’s limited sentencing powers (six months’ imprisonment for a single/multiple summary only or 12 months for single/multiple either way offences)* relative speed and * relative low cost of conducting a trial (which may mean a lower contribution towards costs if convicted), and* less stringent disclosure requirements on the defence (there is no obligation to serve a defence case statement).

Question 116

What are the advantages of the Crown Court over the Magistrates’ Court for the defendant?

Answer 116

Greater benefits if wanting to plead not guility including:* Higher rates of acquittal than in the Magistrates’ Court,* More effective processes for challenging admissibility of evidence (in absence of the jury), and * Longer delay before trial, which makes gathering evidence more practical within the time limits.

Question 117

How are cases allocated following a plea before venue?

Answer 117

• Magistrates’ Court decides whether or not to accept jurisdiction* Defendant decides between Magistrates’ Court and Crown Court if the Magistrates’ Court accepts jurisdiction.

Question 118

What 3 factors does the Magistrates’ Court consider in deciding whether to accept jurisdiction for an either way offence?

Answer 118

• The defendant’s previous convictions* Whether the court’s sentencing powers are adequate, including the adequacy of the court’s aggregate sentencing powers when more than one offence is charged, taking into account the sentencing guidelines and* Representations by the defence and prosecution on mode of trial and the adequacy of sentencing powers. If the Magistrates’ Court declines jurisdiction, the case is sent to the Crown Court for trial.

Question 119

What warning is given to the defendant if the Magistrates’ Court accepts jurisdiction?

Answer 119

If they consent to summary trial, the case can still be committed to the Crown Court for sentence.

Question 120

What happens if the Magistrates’ Court accepts jurisdiction and the defendant consents to summary trial?

Answer 120

The court will set a trial date.

Question 121

What happens if the Magistrates’ Court accepts jurisdiction but the defendant does not consent to summary trial?

Answer 121

The matter will be sent directly to the Crown Court.

Question 122

What is a sentencing indictation?

Answer 122

• The defendant can ask the court for an indication whether the sentence would be custodial or non-custodial if they were to plead guilty and accept summary proceedings* The court is not obliged to give an indication. * If an indication is given and the defendant changes their plea to guilty, the court is then bound to follow this indication in sentencing. * If the court gives an indication but the defendant then maintains their not-guilty plea, the court is not bound to follow the indication if the defendant is later convicted.

Question 123

When will the court be bound by a sentencing indication?

Answer 123

If an indication is given and the defendant changes their plea to guilty, the court is then bound to follow this indication in sentencing.

Question 124

Does the court have to give a sentencing indication?

Answer 124

No

Question 125

What is the procedure for low value theft?

Answer 125

Low value theft (up to a value of £200) adopts a hybrid procedure. * The offence is treated as a summary only offence in that the Magistrates’ Court cannot decline jurisdiction. * However, it is treated as an either way offence in that the defendant can still elect Crown Court trial.

Question 126

D is charged with theft of clothing from a shop to the value of £100. What should D’s solicitor advise them in terms of their options at their first hearing?

Answer 126

That D may elect Magistrates Court trial or Crown Court trial. If D consents to trial in the Magistrates’ Court, the court will not be able to decline jurisdiction and the offence will be dealt with as summary only.

Question 127

Up to what value is low value theft?

Answer 127

£200

Question 128

When will an either way offence be sent to the Crown Court without plea before venue and allocation taking place?

Answer 128

• The defendant or a co-defendant is charged with an indictable only offence alongside the either way offence (if appearing on both charges on the same occasion, the offence must be sent to the Crown Court, whereas if appearing on a separate occasion, the offence may be sent to the Crown Court)* Notice is given by the prosecution to the court that this is a serious or complex fraud case or that the case involves child witnesses whose welfare is best protected by Crown Court trial (e.g. in cases of child cruelty or certain sexual offences).

Question 129

What 2 things happen when a case is set down for summary trial (i.e. not-guilty plea to summary only offence or after plea before venue and allocation is completed)

Answer 129

Magistrates’ Court takes an active role in case management:* A case management form is completed by the court’s legal advisor with help from the prosecution and defence* Court then gives directions

Question 130

What 6 things are included in a case management form?

Answer 130

• Details of witnesses to be called* Details of agreed prosecution witnesses (whose statements can be read)* Estimated length of trial* Any likely applications to the court* Any special arrangements (such as an interpreter) and* Confirmation that the defendant has been advised on credit for early guilty plea and that the trial will proceed in their absence if they fail to attend.

Question 131

What are the 2 standard directions of the Magistrates’ Court?

Answer 131

Prosecution * must serve its evidence within 28 days of the hearing Defence* Within 21 days: raise any points of law * Within 14 days: serve a defence statement (if it is to be served)* Within 7 days: notify which prosecution witnesses are required to attend and serve certificates of readiness

Question 132

What hearings take place in the Crown Court?

Answer 132

• A preliminary hearing for indictable only offences may be held within 14 days of being sent in certain circumstances* A plea and trial preparation hearing takes place 28 day after the case was sent for both indictable only and either way offences

Question 133

For which 5 reasons will a preliminary hearing be held in the Crown Court?

Answer 133

• The trial is likely to last more than four weeks* There are case management problems to address* An early trial date is needed* One of the defendants is under age 18* There is likely to be an early guilty plea.

Question 134

What happens at a plea and trial preparation hearing in the Crown Court?

Answer 134

• The defendant will be arraigned (i.e. plea taken)* Sometimes, the prosecution will agree to ‘offer no evidence’ on some counts if the defendant pleads guilty to others, or to let some counts ‘lie on the court file’ (i.e. the count will not be pursued in exchange for the defendant’s guilty plea to other counts) * Defendant may ask for a Goodyear indication before entering a pleaGuilty Plea * Court will proceed to sentencing. Not Guilty* Judge will set a trial date after advice from counsel on various matters

Question 135

What is a Goodyear indication?

Answer 135

• Defendant may ask for an indication of sentence in the Crown Court before entering a plea* If the judge agrees to give an indication and the defendant then pleads guilty, the judge will be bound by their indication.

Question 136

What 6 factors do counsel advise the judge on before a trial date is set at a Plea and Trial Preparation Hearing?

Answer 136

• Facts of the case (indicate length and complexity of trial)* The number of witnesses* Their availability * Whether special measures (such as giving evidence via video link or from behind a screen) will be needed* Whether there are any issues arising from the defence case statement * Evidential issues including the adequacy of prosecution evidence, expert evidence, hearsay and bad character* Any other matters of law.

Question 137

What is the prosecution’s duty of disclosure?

Answer 137

An ongoing duty to disclose:* all the evidence upon which it intends to rely at trial and * any unused material which might reasonably be considered capable of undermining the case for the prosecution or assisting the case for the defence. If the prosecution seeks to withhold disclosure of sensitive material (e.g. material that would compromise national security or intelligence operations), an application must be made to court in chambers to withhold the material on the grounds of public interest immunity.

Question 138

How long does the prosecution have to complete disclosure?

Answer 138

Ordinarily 50 days (or 70 if the defendant is on bail) to complete disclosure.

Question 139

When can the prosection withhold evidence it is required to disclose?

Answer 139

If it makes a successful application must be made to court in chambers to withhold sensitive material (e.g. material that would compromise national security or intelligence operations), on the grounds of public interest immunity.

Question 140

D is charged with raping V. The incident is alleged to have occurred at a party that both D and V attended. D’s defence, as set out in his defence case statement, is that V consented. After charge, the prosecution obtains V’s phone records which indicate V sent D repeated text messages after the alleged incident asking when they would see each other again. The prosecution do not intend to rely on this evidence at trial. Does the prosecution have to disclose this evidence to the defence?

Answer 140

Yes as a part of the unused material, as it potentally undermines the prosecution’s case and assists the defence.

Question 141

What is the defence case statement?

Answer 141

A summary of the basis of the defence (rarely served in the Magistrates’ Court). This must set out the nature of the defence, including:* what facts of the prosecution case are disputed, * what alternative facts the defence alleges, * what points of law the defence wishes to raise, and * details of any alibi witness, if relevant. If the defence fail to serve an adequate defence case statement on time that reflects the defence put forward at trial, an adverse inference may be drawn. The defence case statement is deemed to be approved by the defendant.

Question 142

When must the defence case statement be served and on whom?

Answer 142

The defence have 28 days to serve a defence case statement on both the prosecution and the court.

Question 143

What happens if the defence fails to serve an adequate defence case statement on time?

Answer 143

An adverse inference may be drawn.

Question 144

What is visual identification evidence?

Answer 144

A witness who saw the commission of the offence gives evidence on the offender’s appearance or identity* It is notoriously unreliable because honest witnesses can nevertheless be mistaken. * If the identity of the offender is likely to be disputed, the police will hold an identification procedure. * Turnbull guidelines (ADVOKATE) must be followed if a case wholly or substantially relies on identification evidences and the defendant disputes the evidence.

Question 145

When are Turnbull Guidelines used?

Answer 145

• If a case wholly or substantially relies on identification evidence and the defendant disputes the identification evidence* Note: they are only for the identification of people - the are not used e.g. when a witness describes a car etc.

Question 146

What are the Turnbull Guidelines?

Answer 146

These guidelines set out factors to determine the strength of the identification evidence.* Amount of time the witness observed the suspect * Distance between the witness and the suspect* Visibility at the time of the observation* Obstruction between witness and suspect (e.g. a tree or other impediments to view)* Known or unknown to the witness (less likely to be mistaken if known)* Any reason to remember the suspect (e.g. limp, tattoo etc)* Time lapse between the incident and the identification procedure* Errors in the witness’s first description of the defendant’s appearance

Question 147

What should a judge do if they conclude identification evidence is weak and there is no supporting evidence?

Answer 147

Withdraw the case from the jury and direct acquittal

Question 148

What should a judge do if they conclude the identification evidence is strong enough that a conviction would be supported?

Answer 148

Leave the case to the jury to decide and give a Turnbull warning.

Question 149

What should a judge do if they conclude there is corroborating evidence to support a weak identification?

Answer 149

Leave the case to the jury to decide and give a Turnbull warning.

Question 150

How might the defence undermine the quality of identification evidence?

Answer 150

By going through the factors set out in ADVOKATE in cross-examination of the identification witness.

Question 151

D appears in court charged with theft of a motor vehicle. D was arrested on the basis of witness identification evidence. The witness saw the theft take place from his bedroom window. It was nighttime and the nearest street light was 10 metres away. It was raining at the time, and the suspect had a hood up. The witness saw the suspect for around 20 seconds, from a distance of some 30 metres. In their first description, the witness described the suspect as having light blond hair. At the identification procedure, the witness identified D as being the offender. D has dark brown hair. D is not known to the witness and there is no corroborating evidence. What is the judge likely to do in this case?

Answer 151

Here, the identification is very weak, as it is made within a short period, from a significant distance, and with poor visibility. The defendant is not known to the witness, and there is a discrepancy between the first description and D’s appearance. The judge is likely to withdraw the case from the jury in these circumstances.

Question 152

The defendant is in court charged with theft of a motor vehicle. The defendant was arrested on the basis of witness identification evidence. The witness watched the defendant trying to break into the car for around five minutes until they finally managed to get the door open. They were around 2 metres away. It was a bright day. The sun was not shining, so it was perfect visibility. There were no obstructions. The witness was known to the defendant. They were buddies so the defendant didn’t mind them watching. The witness came forward with the evidence on the same day. The witness described the defendant very accurately. What is the judge likely to do?

Answer 152

The identification evidence is clearly very strong. The case should be left to the jury to decide. The judge though, will give a Turnbull warning to the jury in the summing up.

Question 153

What is a Turnbull warning?

Answer 153

In the summing up at the end of the trial, the judge must give the jury a Turnbull warning on the identification evidence, which has a set script. The judge should: * Warn of the special need for caution before convicting the defendant in reliance on identification evidence, explaining that a mistaken witness can be convincing and (when there is more than one witness) that several witnesses can be mistaken* Ask the jury to consider the circumstances in which the witness identified the defendant; and * Refer to particular weaknesses with the identification evidence, considering the factors set out in ADVOKATE.

Question 154

Is the defendant obliged to give an account at any stage during the trial or prosecution?

Answer 154

No. * However, remaining silent at various stages of the criminal investigation and prosecution may lead to adverse inferences being drawn. * Such adverse inferences can weaken the defence, but a defendant cannot be convicted on the basis of an adverse inference alone.

Question 155

Can a defendant be convicted on the basis of adverse inferences alone?

Answer 155

No, they can only weaken the defence. The prosecution must raise a prima facie case (i.e. set out some proof on all elements of the offence)

Question 156

When can an adverse inference be drawn?

Answer 156

• Fact upon charge* Evidence at trial* Object, mark or substance* Presence at scene

Question 157

How can an adverse inference be drawn from a fact upon charge?

Answer 157

• Failure to mention fact when questioned or charged which defendant could reasonably be expected to mention * Legal advice to remain silent will not necessarily preclude inference * Triggered by putting forward explanation at trial

Question 158

How can an adverse inference be drawn from evidence at trial?

Answer 158

Failure to give evidence at trial unless the defendant’s physical or mental condition makes it undesirable for them to give evidence

Question 159

How can an adverse inference be drawn from an object, mark or substance?

Answer 159

Failure to account for object, substance, or mark found on defendant’s person, clothing, or footwear in their possession at the time of arrest

Question 160

How can an adverse inference be drawn from presence at scene?

Answer 160

Failure to account for presence at scene of a suspected offence

Question 161

When will an adverse inference not be permitted from failure to give evidence at trial?

Answer 161

When the defendant’s physical or mental condition makes it undesirable for them to give evidence

Question 162

What is hearsay evidence?

Answer 162

A statement, not made in oral evidence, that is relied on as evidence of a matter in it.* It is second-hand evidence that is produced in writing or when someone testifies in court to something someone else told them out of court. * It is generally deemed less reliable as the truth of the content cannot be tested by cross-examination in court. * There are very strict rules of admissibility under statute, rule of law, agreement by all parties, or in the interests of justiceCommon examples include: * witness testifying to an out of court statement e.g. arresting officer providing statement on what a defendant said upon arrest* witness statements read out in court (rather than the witness attending in person) and * business documents produced in court e.g. company account records.

Question 163

W is giving evidence for the prosecution in the case of R V D. D is charged with burglary. D denies their involvement and stated in interview that they were with their girlfriend at the time of the burglary. W gives evidence that they heard D at a local bar discussing the charge against them. W heard D say that they had lied in interview and that their girlfriend was willing to provide them with a false alibi. What type of evidence is this?

Answer 163

This evidence is hearsay, as it is evidence of something said outside of court, offered as evidence that the defendant’s account is false.

Question 164

D is charged with assault of their girlfriend outside a shop. The store security officer witnesses the assault and provides a written statement. The security officer is subsequently unable to attend trial, and so the prosecution seek to adduce the security officer’s written statement. What type of evidence is this?

Answer 164

The written statement is hearsay, as it is a statement not made in oral evidence that is relied on as evidence of the assault taking place.

Question 165

In which 4 situations is hearsay evidence admissible?

Answer 165

Hearsay is admissible only if it falls under one of the four categories of admissible hearsay evidence:* Admissible under statute* Admissible by rule of law* Admissible by agreement of all parties or* Admissible in the interest of justice.

Question 166

In which 6 situations will hearsay evidence be admissible under statute?

Answer 166

• A witness is unavailable.* A business document may be adduced in certain circumstances e.g. company accounts* Statements were prepared for use on criminal proceedings and the relevant person cannot be expected to recollect the matter e.g. often used for adducing police officer reports. * There are previous consistent or inconsistent statements of a witness e.g. to challenge a witness’ altered account or to show they have been consistent throughout* Expert evidence is adduced. * There is a confession

Question 167

When is a witness deemed ‘unavailable’ under statute?

Answer 167

A witness is considered unavailable if they are: * dead (‘unavailable without a seance’), * unfit owing to bodily or mental condition,* outside of the UK and it is not reasonably practicable to secure their attendance, or * unable to be found despite reasonably practicable steps having been taken to find them. * not giving evidence through fear and the court gives leave for a written or recorded statement to be given in evidence

Question 168

When will a business document be adduced as hearsay under statute?

Answer 168

If: * the document was created or received in the course of trade, business, profession, or other occupation, * the person who supplied the information may reasonably be supposed to have had personal knowledge of the matter, and * (if the information was received by other persons) it was done in the course of trade, business, profession, or other occupation.

Question 169

When is hearsay evidence admissible by rule of law?

Answer 169

• Confessions or mixed statements (partly inculpatory and partly exculpatory e.g. a man saying in a pub “I pushed her but I didn’t mean for her to die”) by the defendant* Statements made contemporaneously to the offence (e.g. when a witness to an attack on V shouts “Break his neck like we agreed”, this may be adduced as hearsay evidence that D had intention to cause GBH at the time of the attack); and * Statements preserved by res gestae (i.e. the circumstances), which includes the following: 1. Statements made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded (often used in domestic violence trials)2. Statements accompanying an act which can only be properly evaluated in conjunction with the statement and 3. Statements relating to a physical or mental state.

Question 170

A victim provided a statement very soon after an incident in which the defendant burned her with an iron and told her that he was going to kill her and pinched her throat until she believed him. At the time of giving the statement, she was scared and determined never to go back to him. Eight weeks on, and the memory of this incident have faded. She has nowhere to live but with the defendant. He has pleaded with her, against his bail conditions, that he’s sorry and begged for forgiveness. She’s started to believe that he really is sorry and the fear she felt has faded. The victim decides that she will go back to him. She doesn’t turn up at court and has told the prosecution she’s not willing to give evidence. Can the evidence she gave be admitted?

Answer 170

The prosecution may seek to adduce the victim’s original statement as hearsay evidence on the basis that the victim was so emotionally overpowered at the time of making the statement that concoction or distortion can be disregarded.

Question 171

When might all parties agree to hearsay evidence being admitted?

Answer 171

Agreed witness statements (i.e. they are not disputed)

Question 172

What are the 9 factors the court has to consider to decide whether hearsay will be admissible in the interests of justice?

Answer 172

This is a safety net provision for the courts. The court must consider: * The probative value of the statement to a matter in issue* What other evidence could be given* How important the evidence is in relation to the case as a whole* The circumstances in which the statement was made* How reliable the maker of the statement appears* How reliable the evidence of the making of the statement appears* Whether oral evidence of the matter stated can be given * The amount of difficulty in challenging the statement and * The extent of the likely prejudice caused.

Question 173

What is multiple hearsay?

Answer 173

A statement has been relayed through more than one person before it gets to court e.g. A tells B that C told him he murdered his wife Multiple hearsay is subject to stricter rules and admissible only if: * it is a business document* it is an inconsistent statement* it is a consistent statement* all parties agree or* the value of the evidence is so high that it is in the interests of justice.

Question 174

What is a confession?

Answer 174

Any statement wholly or partly adverse to the person who made it, whether or not made to a person in authority and whether made in words or otherwise. * Mixed statements are also confessions. * Confessions are a particular type of hearsay with special provisions relating to when they are admissible.Example: D is charged with assault occasioning actual bodily harm on V. Upon arrest, D states “I hit them, but it was only in self-defence”. This is a mixed statement, admitting part of the offence but simultaneously putting forward a defence.| s76 PACE 1984

Question 175

When are confessions admissible?

Answer 175

If they are relevant to a matter in issue (i.e. if it goes to proving or disproving some fact in issue in the prosecution). The defence can challenge the admissibility of a confession either on the basis of:* mistake (the listener misheard) or * untruth (this includes confessions obtained by oppression or by things said or done likely to render the confession unreliable provided there is a causal link). If challenged, the prosecution must show beyond a reasonable doubt that neither opression or things said or done likely to render the confession unreliable apply. If they do not, the confession must be excluded| s76 PACE 1984

Question 176

What does ‘relevant’ mean for the purposes of evidence rules?

Answer 176

Something is relevant if it goes to proving or disproving some fact in issue in the prosecution.

Question 177

How is a confession challenged by the defence?

Answer 177

Mistake* showing listener misheardUntruth* demonstrating a causal link * between the oppression (torture inhuman or degrading treatment, and use or threat of violence) or the things said or done likely to render the confession unreliable (including inducements e.g. bail/caution/get out quicker, misrepresenting the strength of the case, questioning an unfit suspect) * and the confession made.

Question 178

If at the time a confession is made, there is oppression or things said or done likely to render it unreliable, in what situation will it be admissible?

Answer 178

If the confession was made independently of the oppression or the things said or done, then it will not be excluded.

Question 179

Who bears the burden of proving a challenged confession is admissible

Answer 179

Prosecution, beyond a reasonable doubt.If they fail, the confession must be excluded

Question 180

D confesses in a police interview to the commission of a murder. The interview tapes record the interviewing officers bullying, hectoring, and shouting at the defendant for a number of hours. The defence challenge the interview’s admissibility on the grounds of oppression. What does the prosection have to prove for the confession to be admissible?

Answer 180

The prosecution will have to satisfy the court, beyond reasonable doubt, that oppression was not used to obtain the confession.

Question 181

D is in custody on suspicion of theft of a watch from a shop. The interviewing officer misrepresents the strength of the evidence by stating there is CCTV footage of D taking the watch and leaving the shop without paying. D confesses to taking the watch. In fact, there is no CCTV footage or any other identification evidence. Is the confession likely to be admissible?

Answer 181

The officer has misrepresented the strength of the prosecution case, and admission of the confession can be challenged on the grounds of unreliability, as D has been misled on the strength of the prosecution case.

Question 182

D is in custody on suspicion of robbery. The interviewing officer tells D they will be given police bail if they admit the offence but that if they do not they will be remanded in custody. D confesses. Is the confession likely to be admissible?

Answer 182

The admissibility of the confession can be challenged on the grounds of unreliability, as D was offered an inducement to confess.

Question 183

D is in custody on suspicion of theft. D has taken a mixture of drugs and alcohol. Their speech is slurred, they are unable to focus properly, and they cannot walk in a straight line. The arresting officer decides to proceed to interview immediately, where D incoherently confesses to the theft. Is the confession likely to be admissible?

Answer 183

The admissibility of the confession can be challenged on the ground of unreliability, as D was arguably not in a fit state to be interviewed.

Question 184

Who decides the admissibility of evidence in:* Magistrates’ Court* Crown Court

Answer 184

Magistrates’ Court: * The bench decides matters of both fact and law. * If the bench rules a confession inadmissible, they must then put the confession from their mind and decide the case without it. Crown Court: * The judge in absence of the jury (matter of law not fact) * This happens in a voir dire hearing. * The jury will not know the nature of the matter being discussed and will not be informed of the outcome.

Question 185

What is a voir dire hearing?

Answer 185

• A hearing in which the judge in absence of the jury decides on the admissibility of a confession. * The jury will not know the nature of the matter being discussed and will not be informed of the outcome.

Question 186

What does s76 PACE relate to?

Answer 186

Admissibility of confessions as hearsay evidence.

Question 187

What does s78 PACE relate to?

Answer 187

The court’s discretion to exclude evidence offered by the prosecution if it appears to the court, considering all the circumstances, that admission of the evidence would have an adverse effect on the fairness of the proceeding.

Question 188

What is the test for the exclusion of evidence for unfairness by the court?

Answer 188

If it appears to the court, considering all the circumstances, that admission of the evidence would have an adverse effect on the fairness of the proceeding.A court will not exercise its discretion to exclude in such circumstances unless the breaches are significant and substantial and have rendered the evidence unreliable. Breaches often arise from police breaches of PACE including: * Illegal searches, * Identification evidence,* Confessions, * Covert surveillance, and* Undercover operations.

Question 189

How do exclusions under s76 of PACE differ from exclusions under s78 of PACE?

Answer 189

Exclusion based on mistake, untruth, oppression, or unreliability due to things said or done (s76) is mandatory-if the court finds that any of these grounds exist, it must exclude the evidence, whilst the court may, but need not, exclude for unfairness (s78).

Question 190

The police arranged an identification procedure for a suspect who is an Asian male. The first description provided by the witness of the perpetrator is also an Asian male. The police select other images in the video identification procedure, but all the other images selected are of Caucasian males. The witness picks out the suspect at the identification procedure. Is the evidence admissible?

Answer 190

There is a clear breach of PACE in the conduct of the identification procedure. It was quite suggestive. The admission of this identification evidence would have an adverse effect on the fairness of the proceedings. An eyewitness who says, “that’s him”, is powerful evidence, therefore, the court can exercise its discretion to exclude it.

Question 191

What is character evidence?

Answer 191

Character evidence falls into two categories: bad character evidence and good character evidence. * Bad character evidence is evidence of, or of a disposition towards, misconduct, commission of offences, or other reprehensible behaviour outside of the facts of the offence for which the defendant is charged (e.g. previous convictions)* Good character evidence is evidence of a lack of, or a lack of a disposition towards, misconduct, the commission of offences, or other reprehensible behaviour. There are 7 gateways to admission of bad character evidence (limited as it is extremely prejudicial) and it can be very important in cases of “his word against hers”

Question 192

What are the 7 gateways to admission of bad character evidence?

Answer 192

• All party agreement * Evidence adduced by the defendant * Important explanatory evidence * Relevant to an important matter in issue between the prosecution and defence* Matter in issue between co-defendants * Correct false impression given by defendant * Defendant attacked another’s character| Criminial Justice Act 2003

Question 193

What is the ‘all party agreement’ gateway to admission of bad character evidence?

Answer 193

• Bad character evidence is admissible if agreed between all parties* Rare but may occur if the defence is based on a change in behvaiour from previous offending e.g. previous convictions ended a long time ago

Question 194

What is the ‘evidence adduced by the defendant’ gateway to admission of bad character evidence?

Answer 194

• The evidence is adduced by the defendant, or * The evidence is given by the defendant in response to cross-examination.

Question 195

What is the ‘important explanatory evidence’ gateway to admission of bad character evidence?

Answer 195

Evidence is admissible under this gateway if: * without it, the jury would find it difficult or impossible to properly understand other evidence in the case, and * its value for understanding the case as a whole is substantial. There is often overlap between this and the ‘propensity’ gateway. Example: D is charged with GBH. There is ID evidence from a witness who recognised D from their mutual association with a violent gang. The evidence of gang association may be admissible under ‘important explanatory evidence’ because it enhances the quality of the identification of the witness.

Question 196

What is the ‘relevant to an important matter in issue between the prosecution and defence’ gateway to admission of bad character evidence?

Answer 196

Often used by prosecutors as it permits admission of bad character evidence on the basis of:* propensity to commit similar types of offences (e.g. previous cautions and convictions) or* a propensity to be untruthful (e.g. convictions for dishonest offences).It can apply to any important matter in issueExample: D is charged with robbery. Any convictions for violent offences (e.g. battery, GBH) or dishonesty offences (e.g. fraud, burglary) may be relevant.

Question 197

What is a ‘similar offence’ for the purposes of the ‘relevant to an important matter in issue between the prosecution and defence’ gateway to admission of bad character evidence?

Answer 197

Propensity to commit similar offences is not restricted to the same offences; it includes all offences of the same kind. This means that any offence that demonstrates a similar kind of behaviour may be adduced under this gateway.

Question 198

How can the prosecution show ‘propensity’ for the purposes of the ‘relevant to an important matter in issue between the prosecution and defence’ gateway to admission of bad character evidence?

Answer 198

• There is no minimum number of events needed to show propensity, although the more events there are, the more likely a propensity is to be made out. * Unless the offence has unusual or distinctive features in common with the previous conviction, propensity is unlikely to be made out on the basis of a single conviction. * Old and spent convictions can potentially still be admissible as evidence of propensity, depending on the nature of the offence. * It is a matter of fact; the more unusual the features of the offence, the more likely it is to show propensity. Example: D is charged with distributing indecent images of children. D has a single previous conviction for the same offence. The offence involved demonstrates unusual behaviour and so a single conviction might still show propensity and therefore be admissible.

Question 199

What is the restriction on the “propensity for untruthfulness” ground of the ‘relevant to an important matter in issue between the prosecution and defence’ gateway to admission of bad character evidence?

Answer 199

This has been restricted to relate to offences only if untruthfulness forms part of the offence. It is unlikely that it can be used to simply adduce evidence of dishonesty offences, such as theft and blackmail, unless it relates directly to the type of offence charged in the instant case.

Question 200

What is the ‘matter in issue between co-defendants’ gateway to admission of bad character evidence?

Answer 200

This gateway may apply where co-defendants are running a cut-throat defence (i.e. blaming each other). * A defendant may seek to show that the co-defendant has a history of committing similar offences to the one charged and is, therefore, more likely to be the perpetrator. * Test for admissibility: ‘substantial probative value’ rather than ‘relevance’ (i.e. going to making a fact in issue between the prosecution and the defence more or less likely), and it is therefore a higher threshold. * The evidence must also relate to an important matter in issue to be admissible.

Question 201

A is jointly charged with B with causing GBH on V, using a baseball bat. A’s defence is that B brought the baseball bat and attacked V while A tried to stop B. B’s defence is that A brought the baseball bat and attacked V while B tried to stop A. B has a previous conviction which is one year old for affray, where B engaged in a public group fight using a baseball bat as a weapon. Is the evidence admissible?

Answer 201

A can seek to adduce this previous conviction, as it has substantial probative value to an important matter in issue between the co-defendants as a recent conviction for a similar type of offence, using the same type of weapon.

Question 202

What is the threshold for admissibility of evidence under the ‘matter in issue between co-defendants’ gateway to admission of bad character evidence?

Answer 202

Substantial probative value

Question 203

What is the ‘correct false impression given by defendant’ gateway to admission of bad character evidence?

Answer 203

• The evidence corrects a false impression given by the defendant. * This includes evidence given by the defendant in court or before court proceedings under caution and evidence given by defence witnesses or elicited by defence questioning.Example: D suggests he is an upright person who would never commit the kind of offence he is accused of. If his criminal record shows this is a lie, the prosecution can seek to introduce this evidnce of bad character in cross-examination to correct false impression

Question 204

What is the ‘defendant attacked another’s character’ gateway to admission of bad character evidence?

Answer 204

When the defendant makes an attack on another person’s character, their own bad character will become admissible under this gateway. * The attack need not take place during the defendant’s evidence at trial. It can also take place while questioned under caution or upon charge. * If defence counsel pursues a line of questioning during cross-examination which is intended to elicit such evidence, the defendant’s bad character will also be admissible. It can be difficult to put forward a defence without falling foul of this gateway.* Note that an attack covers a wide variety of allegations, including suggesting that a witness is biased, raising their previous convictions, or accusing the police of misconduct. Example: D is charged with assault and says they were acting in self-defence because V attacked them first. This could be considered an attack

Question 205

What is the procedure for admission of bad character evidence?

Answer 205

Prosection must provide notice in a set form and served within:* 20 business days of entry of a not guilty plea in the Magistrates’ Court or * 10 business days of entry of a not guilty plea in the Crown Court. If the defendant wishes to oppose, the notice to oppose must also be served in a set form within 10 business days. The application may be decided at a pre-trial hearing or on the day of trial in absence of the jury.

Question 206

What is the timeframe for serving a notice to adduce bad character evidence by the prosecution in the Crown Court?

Answer 206

Within 10 business days of entry of a not guilty plea

Question 207

What is the timeframe for serving a notice to adduce bad character evidence by the prosecution in the Magistrates’ Court?

Answer 207

Within 20 business days of entry of a not guilty plea

Question 208

If a defendant makes an unplanned attack on another’s character during the trial, what happens if the prosecution wish to adduce bad character evidence?

Answer 208

The trial will be halted to hear the application. * The matter will be considered in the Crown Court by the judge in absence of the jury. * In the Magistrates’ Court, the bench hearing the trial will consider the application themselves and put the evidence from their mind if they decide not to admit it. Once the application is dealt with, the trial can resume.

Question 209

When must a defendant’s objection to admission of bad character evidence be made?

Answer 209

Within 10 business days of the prosecution’s notice.

Question 210

If the defence make an application to exclude bad character evidence and it appears to the court that admitting the evidence would have such an adverse effect on the fairness of the proceedings, for which two gateways is the court required not to admit it?

Answer 210

• ‘An important matter in issue between the prosecution and defence’ or* ‘the defendant attacked another’s character‘In making this decision, the court must have regard to the amount of time that has elapsed between the matters that constitute the bad character evidence and the offence charged.

Question 211

What must the court have regard to when considering whether admitting bad character evidence would have such an adverse effect on the fairness of the proceedings for the gateways of ‘An important matter in issue between the prosecution and defence’ or ‘the defendant attacked another’s character’

Answer 211

The amount of time that has elapsed between the matters that constitute the bad character evidence and the offence charged.

Question 212

What is considered to be evidence of good character?

Answer 212

A lack of a criminal record or other noteworthy, commendable behaviour, such as extensive voluntary work, other public service, long record of gainful employment, contributions to the local community through religious organisations..

Question 213

What is a good character direction?

Answer 213

A good character direction consists of two parts: * the propensity direction (i.e. a person of good character is less likely to have committed this offence) and * the credibility direction (a person of good character is more likely to be credible when they assert their innocence either before or during trial).

Question 214

Who is entitled to a good character direction?

Answer 214

A defendant who has no previous convictions is entitled to a good character direction * If the defendant has previous convictions that are old, minor, and not related to the current charge, the defendant will be considered of effective good character and may still receive a propensity and credibility direction. * If the defendant has no previous convictions but there is other bad character evidence upon which the prosecution relies, a good character direction will probably not be available.* If the defendant has no previous convictions but there is bad character evidence which the prosecution does not seek to rely on, the judge has a discretion to give a good character direction.

Question 215

If witnesses are agreed between the prosecution and defence, do they have to give oral evidence in court?

Answer 215

No, their statements are simply read out.

Question 216

What are the 10 stages of a criminal trial?

Answer 216

• Prosecution makes opening speech, outlining allegations and key evidence* Prosecution calls witnesses* [if applicable] Defence makes an application of no case to answer* Defence calls witnesses* Defence makes closing speech [Crown Court only] both prosecution and defence make closing speech* [Crown Court only] Judge sums up evidence* [Crown Court only] Jury deliberate* Bench or judge (Magistrates’ Court) or jury (Crown Court) deliver verdict* [if applicable] If guilty, pre-sentence reports may be ordered* [if applicable] Bench (Magistrates’ Court only) or judgepasses sentence

Question 217

If the defendant opts to give evidence, when do they give their evidence?

Answer 217

After prosecution witnesses, before any other defence witnesses.

Question 218

In what order is a witness questioned?

Answer 218

• Examination in chief: A witness will first be questioned by the party that has called them* Cross examination: They are then questioned by the other side * Re-examination: Only if new issues arise during cross-examination, the witness can be re-examined by the party who called them. Example: A prosecution witness will first be questioned by the prosecution, and they will then be questioned by the defence.

Question 219

What type of questions may be asked of witnesses during examination in chief?

Answer 219

Only non-leading questions. Non-leading questions are questions that do not suggest the answer. They will typically start with who, what, where, when, why, or how. Alternatively, they may be open questions, like “describe” or “tell me about”. They may piggyback upon a witness’s previous answer.

Question 220

W is giving evidence for the prosecution. In examination in chief, unprompted, the prosecution asks: “You saw the defendant standing next to the victim, didn’t you?” Is this line of questioning permitted?

Answer 220

The defence are entitled to object to this (although they will only do so if it goes to a matter in issue between the prosecution and defence) because this is a leading question, suggesting the answer it sought.

Question 221

W is giving evidence for the prosecution. In examination in chief, W says: “I saw the defendant standing next to the victim”. The prosecution then asks: “You say you saw the defendant standing next to the victim. How far away from you were they?” Is this line of questioning permitted?

Answer 221

Yes. This is a non-leading question. Although it piggybacks on the previous answer, it does not suggest the answer.

Question 222

What is the goal of examination in chief?

Answer 222

Witness to give their account unprompted

Question 223

When are leading questions permitted in examination in chief?

Answer 223

When the facts being elicited are uncontested.

Question 224

What is the role of the advocate in cross-examination?

Answer 224

Cast doubt upon the evidence given in chief and to put their client’s account to the witness. In cross-examination, advocates may ask leading questions. Advo- cates will frequently use leading questions to put their case to a witness.

Question 225

W is being cross-examined by the defence. The defendant’s account is that W was too far away to have a good view. The defence advocate asks W questions including: “You were too far away to see defendant and the victim, weren’t you? You couldn’t see what they were doing, could you? You had no idea what was going on, did you?” Is this line of questioning permitted?

Answer 225

Yes, leading questions are permitted in cross-examination.

Question 226

What is the difference between competence and compellability of a witness?

Answer 226

• Competence means that a witness is allowed to give evidence in court. * Compellability means that they can be forced to give evidence.

Question 227

In what circumstances is a witness not competent to give evidence?

Answer 227

If it appears to the court that they are not able to:* understand questions put to them as a witness and * give answers to the court which can be understood. Subject to the above, all witnesses (other than the defendant and the defendant’s spouse or civil partner and co-defendant if there is one) are competent to give evidence for the party that calls them. All competent witnesses are compellable.

Question 228

Is a defendant competent and compellable?

Answer 228

Prosecution: neither competent nor compellableDefence: competent for the defence, but they are not compellable. Note, the jury (or bench or judge in the Magistrates’ Court) may draw an adverse inference if the defendant does not give evidence.

Question 229

What direction must a judge give to a jury in summing up regarding the defendant not giving evidence?

Answer 229

The specimen direction states that: * The defendant is entitled not to give evidence* The jury may draw such inferences as appear proper; * Failure to give evidence on its own cannot prove guilt, but depending on the circumstances, the jury may hold this failure against the defendant; and * If the jury think the only sensible explanation for the decision not to give evidence is that the defendant has no answer to the case against them - or none that could have stood up to cross-examination -then it would be open to the jury to hold the failure to give evidence against the defendant.

Question 230

Who decides whether an adverse inference should be drawn from a defendant’s decision not to give evidence?

Answer 230

It is for the jury to decide whether it is fair to hold the defendant’s failure to give evidence against them. Note: a defendant cannot be convicted on the basis of an adverse inference from the failure to give evidence alone.

Question 231

D is charged with robbery of a bank. The only evidence against D comes from mobile phone data. Records show that D was near or at the scene of the offence at the time of the robbery, but the data is not specific enough to pinpoint D’s exact location. D committed the robbery and therefore cannot provide an account without incriminating themselves. D opts not to give evidence. Is this enough to convict?

Answer 231

If D opts not to give evidence and leaves it to the jury to decide whether the mobile phone data, along with a possible adverse inference from not giving evidence, is sufficient to prove guilt beyond reasonable doubt.

Question 232

Is a defendant’s spouse or civil partner competent and compellable?

Answer 232

Prosecution or co-defendant: competent but not compellable i.e. they may testify but they cannot be forced to) unless the offence involves:* assault, injury, or threat of injury to them or a child under 16 * a sexual offence on a child under 16* or attempting, conspiring, aiding, or abetting those crimes.Defendant: competent and compellable (unless they are jointly charged).

Question 233

Is a co-defendant competent and compellable?

Answer 233

Prosecution: not competent or compellable Defence: competent but not compellable. However, if a co-defendant pleads guilty or the case against them is dropped, they become an ordinary witness and therefore become competent and compellable for either party.

Question 234

D and C are jointly charged with robbery of a bank. They have both pleaded not guilty. Are they competent and compellable for:* the prosectution* D’s defence?

Answer 234

Prosecution: Neither D nor C are competent or compellable D’s defence: D wishes to call C as their witness. C is competent to give evidence for D but cannot be compelled to do so. If, just before the trial starts, C pleads guilty. C is now an ordinary witness and is both competent and compellable for either the prosecution or for D.

Question 235

When does a co-defendant become competent and compellable?

Answer 235

If they plead guilty or the case against them is dropped. They become an ordinary witness and therefore become competent and compellable for either party.

Question 236

Which 5 types of witnesses may request special measures?

Answer 236

Those who are: * Under the age of 18 * With a disability or disorder likely to affect evidence* Affected by fear of giving evidence* Complainants in sexual offences or * Witnesses to specified gun and knife crimes.

Question 237

What special measures are available to witnesses who are entitled to them?

Answer 237

• Placing a screen between the witness and the defendant* Allowing the witness to testify through a video link* Having court officers remove their wigs and gowns* Allowing the witness to give evidence in private * Allowing a witness to pre-record testimony* Using an intermediary to obtain information from the witness. In addition, the court can permit any witness other than the defendant to give evidence via video link if it is in the interest of efficient or effective justice.

Question 238

When will the defence make a submission of ‘no case to answer’?

Answer 238

At the end of the prosecution calling witnesses.The submission argues that the prosecution has not presented enough evidence to amount to a prima facie case. This is the case if the prosecution has either:* failed to adduce evidence of one or more of the elements of the offence or * if the evidence given is so unreliable that no reasonable bench, judge, or jury could convict. This application is heard by the judge in absence of the jury (if in the Crown Court). If successful, the defendant is acquitted. If unsuccessful, the defence will then proceed to advance their case, which may include calling their own witnesses.

Question 239

What are the modes of address for:* Individual magistrates* The bench collectively* District Judge* Crown Court Judge

Answer 239

• Individual magistrates: “Sir” or “Madam”* The bench collectively: “Your Worships”* District Judge: “Sir” or “Madam”* Crown Court Judge: “Your Honour” when addressed or “His or Her Honour Judge [Surname]” when referred to in the third person.

Question 240

What are the solicitor’s 7 professional conduct duties to the court?

Answer 240

• Do not knowingly or recklessly mislead the court * Do not be complicit in another misleading the court * Comply with court orders * Do not place yourself in contempt of court * Advise clients of where duty to court outweighs duty to client * Comply with duties to court * Ensure sensitive issues are not misused and do not offer to pay witnesses

Question 241

For the professional conduct duty of ‘Do not knowingly or recklessly mislead the court’, what is indicative behaviour of:* Meeting the outcome* Failing the outcome

Answer 241

• Meeting the outcome: Advising clients to comply with court order* Failing the outcome: Constructing facts supporting client case which are not properly arguable or make a baseless allegation of fraud

Question 242

For the professional conduct duty of ‘Do not be complicit in another misleading the court’, what is indicative behaviour of:* Meeting the outcome* Failing the outcome

Answer 242

• Meeting the outcome: Drawing court’s attention to relevant cases and procedural irregularities * Failing the outcome: Suggesting crime, fraud, or misconduct unless it goes to a matter in issue or is supported by reasonable grounds

Question 243

For the professional conduct duty of ‘Complying with court orders’, what is indicative behaviour of:* Meeting the outcome* Failing the outcome

Answer 243

• Meeting the outcome: Ensuring child witness evidence is kept securely * Failing the outcome: Calling a witness whose evidence you know is untrue

Question 244

For the professional conduct duty of ‘Do not place yourself in contempt of court’, what is indicative behaviour of:* Meeting the outcome* Failing the outcome

Answer 244

• Meeting the outcome: Informing the court if you have inadvertently misled the court, or withdrawing * Failing the outcome: Attempting to influence a witness when taking their statement as to their evidence

Question 245

For the professional conduct duty of ‘Advise clients of where duty to court outweighs duty to client’, what is indicative behaviour of:* Meeting the outcome* Failing the outcome

Answer 245

• Meeting the outcome: Refusing to act for client if you become aware client has misled the court, or disclose to the court with client’s consent * Failing the outcome: Tampering with evidence

Question 246

For the professional conduct duty of ‘Ensure sensitive issues are not misused and do not offer to pay witnesses’, what is indicative behaviour of:* Meeting the outcome* Failing the outcome

Answer 246

• Meeting the outcome: Not appearing for client if anyone within firm is likely to be called as a witness* Failing the outcome: Naming in court a third party whose character would be called into question, unless in proper conduct of the case

Question 247

For the professional conduct duty of ‘’, what is indicative behaviour of:* Failing the outcome

Answer 247

Failing the outcome: Calling into question the character of a witness you have cross-examined unless the witness has had the opportunity to answer

Question 248

What must a solicitor do if their client tells them “I did it, but I’m pleading not guilty”?

Answer 248

• Solicitor must advise the client carefully on the strength of the evidence and of credit for guilty plea. * If the defendant remains adamant that they will plead not guilty, the solicitor may continue to act for them but cannot put anything before the court they know to be untrue. This means the solicitor will be able to test the strength of the prosecution evidence but will not be able to put forward a positive defence. * If the defendant wishes to advance an alternative defence, the solicitor will have to withdraw.

Question 249

What must a solicitor do if their client tells them “I didn’t it, but I’m pleading guilty”?

Answer 249

• Solicitor should advise the client of the defence available. * If the defendant insists on pleading guilty, the solicitor can continue to act, but they will not be able to put forward anything in mitigation that suggests the defendant did not commit the offence. This is because a solicitor may not mislead the court, and by pleading guilty a defendant is accepting guilt. To suggest in mitigation that the defendant does not accept guilt would prompt the judge to reexamine the plea.

Question 250

What is the scope of the solicitor’s duty to assist the court on points of law?

Answer 250

• The solicitor is under a positive duty to assist the court on points of law, even if this goes against the defendant’s interests. * There is no duty to assist if a solicitor is aware of missing or misinterpreted facts, but they may not mislead the court.

Question 251

What circumstances in the Magistrates’ Court may lead to a defence solicitor advising on the admissibility of evidence or the interpretation of elements of an offence?

Answer 251

The defence solicitor may find themselves to be the only legally qualified person in the room. * The solicitor may appear before a lay bench, guided by a legal advisor who has not necessarily completed their route to qualification* The prosecution case may be put forward by a prosecution caseworker who might not be a qualified lawyer either.

Question 252

The defendant appears in the Magistrates’ Court charged with theft of items from a shop totaling £150. The defendant has 42 previous convictions for similar offences. The bench of lay magistrates incorrectly decide, in light of these previous convictions, that the matter is too serious to be dealt with in the Magistrates’ Court and decline jurisdiction at the plea before venue hearing. What must the solicitor do?

Answer 252

The solicitor representing the defendant is under a duty to correct the court and point out that the bench cannot decline jurisdiction for thefts under £200.

Question 253

The defendant appears in the Magistrates’ Court for trial with theft of items from a shop totaling £150. The legal advisor incorrectly advises the lay bench that the test for dishonesty is whether the defendant was dishonest by the standard of reasonable, honest people and whether the defendant realised he was dishonest by these standards (the test is in fact only the first, objective limb). What must the solicitor do?

Answer 253

Whilst it is disadvantageous to the defendant, the defence solicitor is under a duty to correct this legal error.

Question 254

When can a solicitor act for two or more defendants?

Answer 254

When their accounts are aligned.

Question 255

If a solicitor agrees to act for two defendants and a conflict subsequently arises, what must the solicitor do?

Answer 255

The solicitor will normally have to withdraw from the case entirely. The solicitor may continue to act for one of the defendants only if the duty of confidentiality to the other defendant would not be com- promised.

Question 256

A solicitor is asked to act for two defendants (D and C) who are both charged with affray in relation to a clash between two known gangs. D and C both state that they were the victims of an unprovoked attack by members of the other gang. They also state that no members of their gang were involved in any violence except for the use of reasonable force in self-defence. Can the solicitor act for both?

Answer 256

Yes

Question 257

A solicitor is asked to act for two defendants (D and C) who are both charged with affray in relation to a clash between two known gangs. D and C initially both state that they were the victims of an unprovoked attack by members of the other gang. Both D and C state that no members of their gang were involved in any violence except for the use of reasonable force in self-defence. D later changes their account and states that D did not retaliate but that C did attack others with more than reasonable force. Can the solicitor act for both?

Answer 257

A solicitor would in these circumstances probably have to withdraw from the case entirely. The solicitor would be able to continue to act for D only if they had not yet taken any information from C that would breach the solicitor’s duty of confidentiality if disclosed to D.

Question 258

Why might sentencing be delayed after conviction/guilty plea?

Answer 258

The court may decide to order pre-sentence reports from the probaton service or psychiatric reports before passing sentence - to help determine the appropriateness of various sentencing options.

Question 259

What must a court consider in deciding sentence?

Answer 259

• Sentencing guidelines* Aggravating and mitigating factors relating to the offence* Totality principle* Mitigation (Guilty plea and mitigating factors relating to defendant)

Question 260

What is the purpose of sentencing guidelines?

Answer 260

• To ensure consistency of sentence for similar offences.* These guidelines offer a starting point for an offence and list aggravating and mitigating factors, which may increase or lower the sentence respectively. * Courts are obliged to follow the guidelines unless it is against the interest of justice to do so.

Question 261

When are the courts not obliged to follow the sentencing guidelines?

Answer 261

If it is against the interest of justice to do so.

Question 262

What are aggravating and mitigating factors?

Answer 262

• Factors that the court must take into account in determining the seriousness of the offence.* These factors apply to all offences (if relevant). * In addition to the overarching guidance on seriousness, there are various offence-specific guidelines that courts must consider when sentencing for a relevant offence.

Question 263

Which 4 aggravating factors must be taken into account?

Answer 263

• Previous convictions if it is reasonable to do so (having regard to their nature and the time passed since conviction) * Offence committed whilst on bail * Racial or religious aggravation * Hostility based on sexual orientation, transgender identity, or disability

Question 264

Which 10 aggravating factors may be taken into account?

Answer 264

• Offence premeditated * Offence committed in a group * Targeting vulnerable victim * Offence committed under the influence of drugs or alcohol * Abuse of position of trust * Use of weapon * Gratuitous violence or damage to property * Victim providing a service to the public * High value or sentimental nature of property * Failure to respond to previous sentence

Question 265

Which 7 mitigating factors may be taken into account?

Answer 265

• Offence committed on impulse * Defendant subject to high degree of provocation* Defendant has a disability or mental illness* Defendant is very young or very old * Defendant played a minor role* Defendant was motivated by fear* Defendant has attempted to make reparation with the victim

Question 266

D is charged with burglary of a residential property and has pleaded guilty. D selected the victim’s property because D knew the victim is homosexual and disliked them for this reason. The offence was committed at night and with use of a hammer. The victim was at home at the time of the burglary. D has previous convictions for domestic burglary. D appears for sentence. What factors will be considered by the court in determining the seriousness of the sentence?

Answer 266

The court must consider D’s previous convictions and the hostility based on sexual orientation as aggravating factors. They may also consider the use of a weapon an aggravating factor under the guidelines on seriousness. The guidelines on burglary indicate that a nighttime offence with the victim at home may also be considered aggravating factors.

Question 267

What is the totality principle?

Answer 267

The overall sentence must not be disproportionate to the overall seriousness of the offending behaviour. * If offences arise out of the same matter and are connected and the defendant is found guilty of more than one of the offences, sentences will generally be concurrent (served at the same time)* If the defendant is found guilty of multiple offences that did not arise out of the same conduct, consecutive sentences are more likely to be imposed (sentences will be served after each other)

Question 268

D pleads guilty to inflicting GBH, ABH and theft and appears in the Crown Court for sentence. The GBH and ABH charges relate to offences against two separate victims and were committed during a brawl outside a pub. Upon arrest, a wallet was found in D’s pocket which had previously been reported stolen. Is the court likely to impose concurrent or consecutive sentences?

Answer 268

The court is likely to impose concurrent sentences for the GBH and ABH offences, as they arise out of the same incident. They may prefer to impose a consecutive sentence for theft, since it is not related to the other offences.

Question 269

What is a plea in mitigation?

Answer 269

An address by the defence giving the judge reasons why the lowest possible sentence should be imposed. The advocate will address a number of points for the court to take into account:* Remind judge of credit for guilty plea* Mitigating factors in relation to the offence itself* Minimise aggravating factors* Mitigating factors in relation to the defendant themselves

Question 270

What credit is given for a guilty plea?

Answer 270

• The earlier the guilty plea is entered, the greater the reduction in sentence the defendant will receive. * If the defendant pleads guilty at the first opportunity, they will receive a one-third reduction in sentence. * This is because time, expense, and anxiety for witnesses is avoided when a defendant pleads guilty.

Question 271

What are mitigating factors relating to the defendant?

Answer 271

• Age (particularly young or old)* Health (long term or mental health)* Good character* Work and home situation* Progress since the offence was committed* Remorse for offending * Efforts to address the offending* Early guilty plea

Question 272

D is charged with theft of £2,000 from a Christmas saving scheme that D administered on behalf of their employer. D is 60 years old and of good character. D’s partner is suffering from dementia and is in need of expensive, residential care. D has remortgaged the family home but is still in need of funds for the care. D has recently been diagnosed with depression and is taking medication, has expressed deep remorse and shame for the theft, has repaid most of the funds taken, and is seeking to repay the remainder once able to do so. What mitigating factors may the court take into consideration?

Answer 272

D’s mental health issues, their family situation, their age, good character, remorse, and voluntary efforts at compensation can all be put forward in mitigation.

Question 273

What is the maximum sentencing power of the Magistrates’ Court?

Answer 273

• 6 months for single or multiple summary only offences* 12 months for single or multiple either way offences.

Question 274

What is the maximum sentencing power of the Crown Court?

Answer 274

The maximum sentences under the sentencing guidelines for each offence.

Question 275

What sentencing options are available to the courts?

Answer 275

• Custodial Sentences * Suspended Sentences* Community Orders* Fines * Discharges* Victim Surcharge

Question 276

When will a court impose a custodial sentence?

Answer 276

• Only when the custody threshold has been passed (i.e. no offender should be sentenced to a custodial sentence unless the offence/offences is so serious that neither a fine nor a community order can be justified for the offence). * The sentencing guidelines must be used to determine the appropriate length and the sentence must be the shortest term that is commensurate with the seriousness of the offence/offences* An offender will generally spend half their sentence in custody and the remaining half on licence. If an offender breaches any term of the licence or commits any further offences during the term of the licence, they would automatically be returned to custody to complete the remainder of the sentence.

Question 277

If an offender is on licence and they breach any term of the licence or commit further offences, what happens?

Answer 277

They would automatically be returned to custody to complete the remainder of the sentence.

Question 278

When can the court impose a suspended sentence?

Answer 278

• When the custody threshold has been passed in place of an immediate custodial sentence.* The offender is not placed in custody but will be liable to serve the sentence in custody if they break any conditions of the suspension or if they commit any further offences whilst subject to the suspended sentence. * The Crown Court can suspend a two-year sentence (max period of suspension), and the Magistrates’ Court can suspend a six-month sentence. * The court is able to impose additional requirements (e.g. a community order) as a part of the suspended sentence. If a defendant breaches a suspended sentence requirement/commits an offence whilst subject to a suspended sentence, the court may: (1) activate the custodial term imposed(2) activate a reduced term to reflect the period of compliance with the suspended sentence, (3) amend the requirements of the sentence to be more onerous, or (4) extend the period of suspension originally imposed.

Question 279

What is the maximum period for which a sentence can be suspended?

Answer 279

2 years

Question 280

What is the maximum period the Magistrates’ Court can suspend a sentence?

Answer 280

6 months

Question 281

What happens if a defendant breaches a suspended sentence requirement/commits an offence while subject to a suspended sentence?

Answer 281

The court may: * activate the custodial term imposed* activate a reduced term to reflect the period of compliance with the suspended sentence, * amend the requirements of the sentence to be more onerous, or * extend the period of suspension originally imposed.

Question 282

What is a community order?

Answer 282

• A sentences carried out in the community rather than in custody. * The court can impose one if it considers an order to be the most suitable sentence for the offender.* The court will impose restrictions (varied and may be in combination) that are commensurate with the seriousness of the offence.* The probation service will frequently provide a pre-sentence report if a community order is considered. The probation service will advise on the suitability of any order and particular requirements.* If an offender breaches a community order, they can be subject to breach proceedings. This can result in the order being amended and more onerous terms being imposed, or it can even result in the order being revoked and the offender being sentenced to immediate custody.

Question 283

What elements might a community order consist of?

Answer 283

• Unpaid work requirement Rehabilitation activity requirement* Programme requirement, such as a sex offenders or drink driving programme* Curfew* Exclusion from a particular area* Residence requirement* Mental health treatment requirement* Drug rehabilitation or alcohol treatment requirement

Question 284

What are the consequences of breaching a community order?

Answer 284

An offender can be subject to breach proceedings. This can result in:* the order being amended and more onerous terms being imposed, or * the order being revoked and the offender being sentenced to immediate custody.

Question 285

Which court can impose a fine?

Answer 285

Both Crown and Magistrates’ Courts, either as sole sentence or in combination with any other sentence (save for a discharge).

Question 286

What is a discharge?

Answer 286

If the court does not feel any other sentence is merited, the court can opt to impose a discharge. * An absolute discharge means there is no punishment whatsoever, except for the recording of the offence on the record * A conditional discharge means the defendant must not offend again for a specified period (up to three years) or they will face being resentenced for the original offence.

Question 287

What is the maximum length of a conditional discharge?

Answer 287

3 years

Question 288

What is a victim surcharge?

Answer 288

• In addition to any sentence imposed, when a defendant is sentenced, a victim surcharge must be levied. * This is compulsory* The amount charged will depend on the type of sentence imposed* The surcharge does not go directly to the victim but instead is pooled and distributed by a Fund.

Question 289

Does a victim surcharge go directly to the victim?

Answer 289

No, it is pooled and distributed by a Fund

Question 290

What happens if a defendant wishes to plead guilty on a specified basis but does not agree with the full facts as set out by the prosecuton?

Answer 290

The defendant can offer written a basis of plea to the prosecution. * If the prosecution accepts that the basis offered reflects the seriousness of the offending, the defendant can then be sentenced on the agreed basis. * If the prosecution does not accept the defendant’s basis of plea, the court will hold a Newton hearing to settle the disputed facts.

Question 291

What is a Newton Hearing?

Answer 291

A hearing held where a defendant wishes to plead guilty where facts that are disputed between the prosecution and defence are settled.A Newton hearing takes the form of a trial in which witnesses are called to give evidence. * If the hearing is settled in the prosecution’s favour, the defendant will lose any credit for the guilty plea.* If the hearing is settled in the defendant’s favour, the defendant will retain any credit for the guilty plea.

Question 292

D is charged with robbery. The prosecution allege that D threatened V with a baseball bat by waving it around and then pushed V to the ground before taking V’s phone. D admits stealing V’s phone, but D denies that they threatened V with a baseball bat or pushed them to the ground. However, D admits they made an oral threat of “Give me your phone or you’ll regret it”. D also says they were holding a roll of wrapping paper instead of a baseball bat, and D claims that V slipped and fell without D touching them. In these circumstances, D admits they are guilty of robbery because D accepts they threatened the use of force at the time of the theft and in order to steal. However, the basis of the admission is significantly less culpable than the prosecution’s account. What is likely to happen in these circumstances?

Answer 292

A Newton hearing is likely to be held.

Question 293

What rights of appeal does a defendant convicted in the Magistrates’ Court have?

Answer 293

• A right to appeal conviction or sentence to the Crown Court* A right to appeal to the Divisional High Court by way of case stated (i.e. decision is wrong in law or in excess of jurisdiction)

Question 294

What rights of appeal does a defendant who pleaded guilty in the Magistrates’ Court have?

Answer 294

• Appeal to the Crown Court only against sentence.* A right to appeal to the Divisional High Court by way of case stated (i.e. decision is wrong in law or in excess of jurisdiction)

Question 295

Does the prosecution have any right to appeal a Magistrates’ Court decision?

Answer 295

• A right to appeal to the Divisional High Court by way of case stated (i.e. decision is wrong in law or in excess of jurisdiction)* Prosecution has no right to appeal to the Crown Court

Question 296

What is the procedure for a defendant appealing a Magistrates’ Court decision?

Answer 296

• The defendant must lodge a written notice of appeal with the convicting/sentencing court within 15 days.* There is no requirement to set out the basis of appeal as the court has no power to decline jurisdiction. However, it is usual practice to set out the grounds of appeal.

Question 297

What happens in appeal proceedings in the Crown Court?

Answer 297

• The matter is heard by a Crown Court Judge supported by at least two, and no more than four, magistrates. * It constitutes a complete rehearing, which means new evidence can be called* The Crown Court has the power to increase as well as reduce the sentence imposed, although they are restricted to the sentencing powers of the Magistrates’ Court. * The Court can also impose a costs order on the defendant should the appeal be unsuccessful.

Question 298

Can the Crown Court increase the sentence imposed by a Magistrates’ Court decision on appeal?

Answer 298

Yes, it has the power to increase as well as reduce the sentence imposed, although they are restricted to the sentencing powers of the Magistrates’ Court.

Question 299

When might the Crown Court impose a costs order on the defendant?

Answer 299

If the appeal is unsuccessful.

Question 300

Can the Crown Court impose its maximum sentencing power on appeal of a Magistrates’ Court decision?

Answer 300

No it is restricted to the sentencing powers of the Magistrates’ Court

Question 301

What is an appeal by way of case stated?

Answer 301

• An appeal from the Magistrates’ Court to the Divisional Court (High Court) made by either the prosecution or defence. * It must be on the ground that the decision is wrong in law or in excess of jurisdiction. * The application must be made in writing within 21 days of the decision that is appealed to the convicting/sentencing Magistrates’ Court, and it must include the point of law subject to the appeal. * The appeal is heard by three judges, and only legal arguments will be made; there will be no rehearing of evidence. * Common arguments: the bench misunderstood or misapplied the law, made errors on the admissibility of evidence, or heard a case outside their jurisdiction.

Question 302

What is the time limit for applying for an appeal by way of case stated?

Answer 302

21 days

Question 303

What are the main differences between an appeal to the Crown Court and an appeal by way of case stated to the Divisional Court?* Applicant* Time limit* Application* Grounds* Hearing

Answer 303

Applicant* Crown Court: Defendant only * Divisional Court: Prosecution and DefendantTime limit* Crown Court: 15 days* Divisional Court: 21 daysApplication/Grounds* Crown Court: Written notice, no requirement to set out basis* Divisional Court: Written notice, must include point of law subject to appealGrounds* Crown Court: Conviction or Sentence* Divisional Court: Decision is wrong in law or in excess of jurisdictionHearing * Crown Court: Rehearing with new evidence* Divisional Court: Legal arguments only, no rehearing of evidence

Question 304

What is the process for a defendant to appeal a Crown Court Conviction to the Court of Appeal?

Answer 304

Can appeal conviction (if unsafe) and sentence (if wrong in law, wrong in principle or manifestly excessive) * Defendant must obtain leave to appeal as a first step.* This can be granted either by the** trial judge or the Court of Appeal** itself. * If a defendant seeks leave from the Court of Appeal, they must lodge a notice for application of leave to appeal within 28 days of the decision with the convicting/sentencing court.* The Crown Court will then send the appeal to the Court of Appeal, where a single judge will decide whether leave to appeal should be granted. * If refused, the defendant can renew the application to the full court

Question 305

What is the time limit for a defendant to apply for leave to appeal in the Court of Appeal?

Answer 305

28 days

Question 306

In what circumstances can a defendant appeal a conviction to the Court of Appeal?

Answer 306

Only if it is ‘unsafe’. This may be if:* evidence was wrongly admitted or excluded* a direction was wrongly given or omitted* the conduct of the trial judge demonstrated obvious bias* there was wrongful exercise of discretion* there were errors in summing up* there were problems relating to the jury.When hearing the appeal, the Court of Appeal can:* quash the conviction and order either acquittal or a retrial* find the defendant guilty of some offences but not others* find the defendant guilty of alternative offences or* dismiss the appeal.

Question 307

What are the 4 possible outcomes of an appeal on conviction to the Court of Appeal?

Answer 307

The Court of Appeal can:* quash the conviction and order either acquittal or a retrial* find the defendant guilty of some offences but not others* find the defendant guilty of alternative offences or* dismiss the appeal.

Question 308

D is convicted by a jury on robbery charges at the Crown Court. The judge permitted the admission of hearsay evidence during the course of the trial. The hearsay related to the defendant bragging about the offence at the pub a week after the offence was committed. In summing up, the judge did not provide the jury with a Turnbull direction on the weight of hearsay evidence. On what grounds can the decision be appealed?

Answer 308

The Court of Appeal could decide to quash D’s conviction on the grounds that the conviction is unsafe.

Question 309

In what circumstances can a defendant appeal a sentence to the Court of Appeal?

Answer 309

The sentence was wrong in law, wrong in principle, or manifestly excessive.* The Court of Appeal can quash any sentence imposed by the Crown Court and impose any sentence it deems appropriate.* However, it cannot exceed the sentence imposed by the Crown Court. * Any new sentence imposed by the Court of Appeal will be deemed to have been imposed at the original sentencing date, which means any further time spent in custody pending appeal will be taken into consideration.

Question 310

Can the Court of Appeal impose a longer sentence than was imposed in the Crown Court?

Answer 310

No

Question 311

Can the prosecution appeal a Crown Court decision?

Answer 311

The prosecution:* cannot appeal a decision by the jury to acquit a defendant* can appeal rulings made by the judge during the course of the trial e.g. a judge’s decision that there is no case to answer or decisions regarding the admission or exclusion of evidence, such as a refusal to admit a confession or identification evidence. * The Attorney General may also refer a case to the Court of Appeal if they feel a sentence passed was unduly lenient and permission is granted by the Court of Appeal itself.

Question 312

Can the Court of Appeal impose a longer sentence than was imposed in the Crown Court?

Answer 312

No

Question 313

When can the Attorney General refer a case to the Court of Appeal?

Answer 313

If they feel a sentence passed was unduly lenient and permission is granted by the Court of Appeal itself.

Question 314

What are the two conditions for an appeal to the Supreme Court?

Answer 314

By the defendant or prosecution only if: * The Court of Appeal or the Supreme Court grant leave to appeal, and * The Court of Appeal certifies that a point of law of general public importance is involved.

Question 315

What is the Youth Court?

Answer 315

• A part of the Magistrates’ Court and deals with youths aged between 10 and 17.* Proceedings are conducted in a closed courtroom where the public are excluded. The press is permitted to attend but is subject to reporting restrictions that prevent the publication of any details likely to lead to the identification of the defendant. * Proceedings are conducted in a less formal manner with representatives remaining seated when they address the bench and all parties, including the defendant, sitting at the same level. Formalities of address are also largely dispensed with, and there is an increased emphasis on using plain English.

Question 316

Are the press permitted at Youth Court trials?

Answer 316

Yes subject to reporting restrictions that prevent the publication of any details likely to lead to the identification of the defendant.

Question 317

Does the Youth Court have jurisdiction over a case if the youth turns 18 during the course of proceedings?

Answer 317

• The Youth Court may elect to retain the case for trial or remit the case to the adult Magistrates’ Court. * In either event, the court will have the full range of sentencing options available in the adult court upon conviction.

Question 318

When are the full range of sentencing options of the Magistrates’ Court available in the Youth Court?

Answer 318

If a youth turns age 18 during the course of proceedings and theYouth Court elects to retain the case for trial

Question 319

Which crimes by a youth must be sent to the Crown Court?

Answer 319

• Murder, attempted murder, or manslaughter* Certain firearm offences * Specified violent, sexual, or terrorism offences where the youth is considered dangerous.

Question 320

What is a grave crime?

Answer 320

An offence punishable in the adult court by a sentence of 14 years or more, such as robbery, rape, or a specified firearms or sexual offence.* When a youth appears charged with a grave crime, the Youth Court considers the adequacy of its sentencing powers in determining whether to accept jurisdiction. * The Youth Court should send cases to the Crown Court only if it feels its maximum sentence is insufficient and that a sentence of long term detention would be more appropriate. * The court must conclude that there is a real prospect of a custodial sentence of substantially more than two years to decline jurisdiction.

Question 321

What 2 factors must the Youth Court consider in respect of their jurisdiction for grave crimes?

Answer 321

• The adequacy of its sentencing powers (only send to Crown Court if maximum is insufficient and an sentence of long term detention would be more appropriate)* Whether there is a real prospect of a custodial sentence of substantially more than two years

Question 322

What happens if a youth is jointly charged with an adult who is sent to the Crown Court for trial?

Answer 322

The youth will also be sent to the Crown Court for trial.

Question 323

What happens if a youth is jointly charged with an adult standing trial in the Magistrates’ Court?

Answer 323

The youth will be tried alongside the adult in the Magistrates’ Court.

Question 324

A group of defendants aged 14, 16 and 19 are jointly charged with ABH. The 19 year old’s trial will take place in the Magistrates’ Court. Where will the other trials take place?

Answer 324

Magistrates’ Court

Question 325

What are the sentencing options available to the Youth Court?

Answer 325

• Referral Orders* Youth Rehabilitation Orders* Detention and Training Orders

Question 326

What are the Sentencing Children and Young People Definitive Guidelines?

Answer 326

Comprehensive guidelines to both Magistrates’ and Crown Courts on: * the types of sentences available when dealing with youths and * the purpose and role of sentencing when dealing with youths.

Question 327

What is the primary purpose of sentencing in the Youth Court under the Sentencing Children and Young People Definitive Guidelines?

Answer 327

Preventing offending. The court should give primary focus to the offender above the offence committed. There is an emphasis on rehabilitation, on avoiding criminalising youths unnecessarily, and on getting young offenders to take responsibility for their actions.

Question 328

What is a referral order?

Answer 328

A referral to the Youth Offender Panel. * The panel comprises a member of the youth offending team and two community representatives * The panel will meet with the youth and their family and agree a contract (from three to 12 months in length) aiming to address the youth’s offending, address their issues, and make restitution to the victim. * If the youth commits further offences whilst subject to a referral order, or if the terms of the order are breached, the court has discretion on whether to permit the order to continue or to revoke the order and resentence.

Question 329

What is the minimum and maximum length of a referral order

Answer 329

3 - 12 months

Question 330

What are the 3 aims of a referral order?

Answer 330

• address the youth’s offending, * address their issues, and * make restitution to the victim.

Question 331

If a referral order is breached or further offences are committed while subject to a referral order, what are the consequences?

Answer 331

Court has discretion on whether to permit the order to continue or to revoke the order and resentence.

Question 332

In relation to referral orders, when:* must one be made* may one be made* can one not be made at all

Answer 332

Must be made* The defendant pleads guilty to imprisonable offences and has not been convicted of an imprisonable offence before (unless the bench intends to impose a custodial sentence or an absolute discharge)May be made* The defendant pleads guilty to some but not all offences, or* If a defendant has previously received a referral orderCannot be made at all* The defendant pleads not guilty to all offences but is convicted after trial

Question 333

What is a Youth Rehabilitation Order?

Answer 333

An order that can last up to three years and can include a variety of conditions, including:* supervision (attending appointments with the probation service)* unpaid work (completing up to 240 hours of unpaid work over a maximum of 12 months)* activities (making restitution to the victim or addressing their offending behaviour)* programmes (such as anger management)* curfew* exclusion from a specified area* residence requirements amongst others.

Question 334

What is the maximum amount of time a Youth Rehabilitation Order can last?

Answer 334

3 years

Question 335

What is the maximum amount of unpaid work that can be ordered under a Youth Rehabilitation Order?

Answer 335

240 hours over a maximum of 12 months

Question 336

What is a Detention and Training Order?

Answer 336

The custodial sentence available to the Youth Court. * 10 and 11: not available* 12 and 13: available only for persistent young offenders.* 15 - 17: an order can be imposed on any offender as long as the court is of the opinion that the case is so serious that only a custodial sentence is justified. A detention and training order can be imposed for a period of 4, 6, 8, 10, 12, 18, or 24 months. The first half of the sentence will be spent in custody, and the second half of the sentence will be spent under the supervision of the Youth Offending Team. The Youth Offending Team, rather than the court, will decide the conditions of the supervision period. If the supervision element is breached, the court can order the youth to serve a further period in custody.

Question 337

What is a persistent young offender?

Answer 337

A defendant who has been sentenced on three occasions for an offence punishable by imprisonment.

Question 338

When can a Detention and Training Order be imposed on a 15 -17 year old?

Answer 338

When the court is of the opinion that the case is so serious that only a custodial sentence is justified.

Question 339

Who decides the conditions to be imposed during the supervision period of a Detention and Training order?

Answer 339

The Youth Offending Team

Question 340

If a condition of a Detention and Training Order is breached during the supervision period, what are the consequences?

Answer 340

The court can order the youth to serve a further period in custody.